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Full text of "Comprehensive Crime Control Act of 1983 : hearings before the Subcommittee on Criminal Law of the Committee on the Judiciary, United States Senate, Ninety-eighth Congress, first session on S. 829 ... May 4, 11, 18, 19, and 23, 1983"

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S.  Hrg.  98-503 









S.  829 


MAY  4,  11,  18,  19,  AND  23,  1983 

Serial  No.  J-98-37 

Printed  for  the  use  of  the  Committee  on  the  Judiciary 

S.  Hrc.  9H-503 









S.  829 


MAY  4,  11,  18,  19,  AND  23,  1983 

Serial  No.  J-98-37 

Printed  for  the  use  of  the  Committee  on  the  Judiciary 

25-694  O  WASHINGTON    :  1984 


STROM  THURMOND,  South  Carolina,  Chairman 

CHARLES  McC.  MATHIAS,  Jr.,  Maryland         JOSEPH  R.  BIDEN,  Jr.,  Delaware 
PAUL  LAXALT,  Nevada  EDWARD  M.  KENNEDY,  Massachusetts 

ORRIN  G.  HATCH,  Utah  ROBERT  C.  BYRD,  West  Virginia 


ALAN  K.  SIMPSON,  Wyoming  DENNIS  DeCONCINI,  Arizona 

JOHN  P.  EAST,  North  Carolina  PATRICK  J.  LEAHY,  Vermont 



ARLEN  SPECTER,  Pennsylvania 

VI^fTON  DeVane  Lide,  Chief  Counsel  and  Staff  Director 

Deborah  K.  Owen,  General  Counsel 

Shirley  J.  Fanning,  Chief  Clerk 

Mark  H.  Gitenstein,  Minority  Chief  Counsel 

Subcommittee  on  Criminal  Law 

PAUL  LAXALT,  Nevada,  Chairman 
STROM  THURMOND,  South  Carolina  JOSEPH  R.  BIDEN,  Jr.,  Delaware 

ARLEN  SPECTER,  Pennsylvania  MAX  BAUCUS,  Montana 

ROBERT  DOLE,  Kansas 

John  F.  Nash,  Jr.  Chief  Counsel  and  Staff  Director 

WiLUAM  Miller,  General  Counsel 

Beverly  McKittrick,  Majority  Counsel 

Frederick  Nelson,  Counsel 




Laxalt.   Hon.   Paul,   a  U.S.   Senator  from  the  State  of  Nevada,  chairman, 

Subcommittee  on  Criminal  Law 1,  221 

Thurmond,  Hon.  Strom,  a  U.S.  Senator  from  the  State  of  South  Carolina, 

chairman.  Committee  on  the  Judiciary 2,  971 

Kennedy,  Hon.  Edward  M.,  a  U.S.  Senator  from  the  State  of  Massachusetts,....  3,  969 

Biden,  Hon.  Joseph  R.,  Jr.,  a  U.S.  Senator  from  the  State  of  Delaware 4,  222 

Specter,  Hon.  Arlen,  a  U.S.  Senator  from  the  State  of  Pennsylvania,  chair- 
man. Subcommittee  on  Juvenile  Justice 541 


Wednesday,  May  4,  1983 

Smith,  Hon.  William  French,  Attorney  General  of  the  United  States,  U.S. 

Department  of  Justice 5 

Giuliani,  Rudolph,  Associate  Attorney  General,  Lowell  Jensen,  Assistant  At- 
torney General,  Department  of  Justice;  and  John  M.  Walker,  Jr.,  Assistant 
Secretary,  Enforcement  and  Operations,  Department  of  the  Treasury 12 

Wednesday,  May  11,  1983 

Robb,  Hon.  Charles  S.,  Governor,  Commonwealth  of  Virginia,  on  behalf  of 
National  Governors'  Association,  accompanied  by  Richard  N.  Harris,  direc- 
tor, Department  of  Criminal  Justice  Services,  Commonwealth  of  Virginia; 
and  Nolan  E.  Jones,  staff  director.  Committee  on  Criminal  Justice  and 
Public  Protection,  National  Governors'  Association 223 

Zimmerman,  Hon  LeRoy  S.,  attorney  general,  on  behalf  of  National  Associ- 
ation of  Attorneys  General,  accompanied  by  Mrs.  Mclntyre,  deputy  attor- 
ney general  Commonwealth  of  Pennsylvania 270 

Miller,  Edwin  L.  Jr.,  San  Diego  County  district  attorney,  president  elect, 
National  District  Attorneys  Association 290 

Wednesday,  May  18,  1983 

Symms,  Hon.  Steven,  a  U.S.  Senator  from  the  State  of  Idaho,  accompanied  by 
Larry  Pratt,  executive  director.  Gun  Owners  of  America  and  John  M. 
Snyder,  director  of  publications  and  public  affairs.  Citizens  Committee  for 
the  Right  to  Keep  and  Bear  Arms 321 

Shattuck,  John,  national  legislative  director;  David  E.  Landau,  legislative 
counsel,  American  Civil  Liberties  Union  and  Prof.  Leon  Friedman,  Profes- 
sor of  law,  Hofstra  Law  School 335 

Marek,  Edward  F.,  public  defender,  Cleveland,  Ohio,  northern  district  of  Ohio 
and  Richard  J.  Wilson,  director.  Defender  Division,  National  Legal  Aid  and 
Defenders  Association 462 

Thursday,  May  19,  1983 

joint  hearing — subcommittees  on  juvenile  justice  and  criminal  law 

Knapp,  James  I.,  Deputy  Assistant  Attorney  General,  accompanied  by  Roger 
Pauley  and  Molly  Warlow,  Office  of  Legislation,  Criminal  Division,  U.S. 
Department  of  Justice 542 




Tjoflat,  Hon.  Gerald  Bard,  U.S.  Circuit  Judge,  11th  Circuit  Court  of  Appeals, 
and  Chairman,  Committee  on  the  Administration  of  the  Probation  System, 
Judicial  Conference  of  the  United  States 638 

Greenhalgh,  Prof.  William  W.,  Georgetown  University  Law  Center,  chairman, 
Section  on  Criminal  Justice,  accompanied  by  Prof.  B.  James  George,  Jr., 
New  York  Law  School,  chairman,  Standing  Committee  on  Association 
Standards  for  Criminal  Justice,  and  Timothy  B.  Atkeson,  Esq.,  chairman, 
ad  hoc  Committee  on  Federal  Criminal  Code  of  Corporate  Banking  and 
Business  Law  Section,  American  Bar  Association 667 

Reader,  Hon.  W.  Donald,  Senior  Judge,  Family  Court,  Stark  County,  Ohio, 
chairman,  Legislative  and  Government  Regulations  Committee,  National 
Council  of  Juvenile  and  Family  Court  Judges , 816 

Roth,  Prof.  Loren  H.,  codirector,  law  and  psychiatry  program.  Department  of 
Psychiatry,  University  of  Pittsburgh 828 

Monday,  May  23,  1983 

Panel  consisting  of:  Mark  Moseley,  Virginia;  Roberta  Roper,  Upper  Marlboro, 
Md.;  Margaret  Damast,  Catonsville,  Md.;  Jill  Reed,  Tulsa,  Okla.;  Jennifer 
Short,  Tulsa,  Okla.;  and  Patricia  Miller,  Atlantic  City,  N.J 971 

Harshbarger,  Scott,  Esq.  district  attorney,  Middlesex  County,  Mass.;  Jan 
Smaby,  first  chairperson,  Minnesota  Sentencing  Guidelines  Commission, 
Minneapolis,  Minn.;  Dr.  William  Rhodes,  senior  economist.  Institute  for 
Law  and  Social  Research,  Washington,  D.C.;  and  Brian  Forst,  research 
director.  Institute  for  Law  and  Social  Research,  Washington,  D.C 988 


American  Bar  Association:  Prepared  statement 736 

American  Civil  Liberties  Union:  Prepared  statement 348 


A.  "Staff  Reductions  in  Law  Enforcement  Agencies,"  Washington 

Post 372 

B.  "Realistic  Approaches  to  Crime  Control,"  Civil  Liberties,  Febru- 

ary 1983 373 

C.  ACLU  testimony  on  H.R.   5679,  Bail  Provisions  before  House 

Subcommittee  on  Criminal  Justice,  April  29,  1982 *'* 

D.  ACLU  memorandum,  analysis  of  S.  2572,  "Bail  Reform  Act  of 

1982,"  July  26,  1982 375 

E.  ACLU  Supreme  Court  amicus  brief.   The  State  of  Illinois  v. 

Lance  and  Susan  Gates,  No.  81-430:  Exclusionary  Rule 384 

F.  ACLU  statement  on  S.  2216,  To  Reform  Habeas  Corpus  Proce- 

dures, before  Senate  Judiciary  Committee,  April  1,  1982 <^ 

G.  ACLU  statement  on  S.  1630,  Federal  Criminal  Code  Revision, 

before  Senate  Judiciary  Committee,  October  1,  1981 *'^ 

H.  ACLU  Evaluation  of  the  Constitutionality  of  S.  114,  as  amend- 
ed. The  Proposed  Federal  Death  Penalty  Statute,  July  28,  1981.  <^> 
I.  ACLU  statement  concerning  Insanity  Defense  before  House  Ju- 
diciary Committee,  May  12,  1983 *^* 

J.  ACLU  testimony  on  Extradition  before  House  Judiciary  Com- 
mittee, May  5,  1983 <*> 

K.  ACLU  testimony  on  H.R.  595,  the  Federal  Tort  Claims  Act 
Amendments  of  1983  before  the  House  Subcommittee  on  Ad- 
ministrative Law  and  Governmental  Relations,  April  27,  1983...  "* 

Atkeson,  Timothy  B.:  Testimony 673 

Damast,  Margaret:  Testimony 977 

Federal  Public  and  Community  Defenders:  Prepared  statement 466 

Forst,  Brian:  Testimony : 1000 

Friedman,  Leon: 

Testimony 336 

Prepared  statement ; 348 

George,  Prof.  James  B.,  Jr.:  Testimony 667 

Giuliani,  Rudolph:  Testimony 12 

Greenhalgh,  Prof.  William  W.: 

Testimony 667 

Lectures  by  Justice  Potter  Stewart 676 

Greenhalgh,  Prof.  William  W. — Continued  Page 
Good  Advice  from  a  Justice,  excerpt  from  the  New  York  Times,  May  4, 

1983 735 

Prepared  statement  on  behalf  of  the  American  Bar  Association 736 

Standards  Relating  to  Transfer  Between  Courts 797 

Views  presented  on  behalf  of  the  Section  on  Criminal  Justice 803 

Harshbarger,  Scott,  Esq.: 

Testimony 988 

Prepared  statement 992 

Jensen,  Lowell:  Testimony 19 

Knapp,  James  I.: 

Testimony 542 

Prepared  statement 550 

Responses  to  questions  submitted  by: 

Senator  Arlen  Specter 560 

Senator  Charles  McC.  Mathias,  Jr 594 

Needed:  Serious  Solutions  for  Serious  Juvenile  Crime 601 

News  release,  Department  of  Justice,  December  5,  1982 634 

News  articles: 

U.S.  Studies  Trials  of  Juveniles,  from  the  New  York  Times,  Decem- 
ber 6,  1982 635 

Debating  New  Jersey  Youth  Crime  Law,  from  the  New  York  Times, 

August  1,  1982 636 

Landau,  David  E.: 

Testimony 342 

Prepared  statement 348 

Marek,  Edward  F.: 

Testimony 462 

Position   paper  and  testimony  of  the   Federal   Public  and  Community 

Defenders 466 

Summary  of  testimony 492 

Miller,  Edwin,  L..  Jr.: 

Testimony 290 

Prepared  statement 296 

Resolution  adopted  by  the  Board  of  Directors  of  the  National  District 

Attorneys  Association 318 

Miller,  Patricia:  Testimony 985 

Moseley,  Mark:  Testimony 971 

National  Council  of  Juvenile  and  Family  Court  Judges 821 

National  Legal  Aid  and  Defender  Association:  Prepared  statement 507 

Pratt,  Larry:  Testimony 326 

Reader,  Hon.  W.  Donald: 

Testimony 816 

Prepared   statement  of  the  National   Council   of  Juvenile  and  Family 

Court  Judges 821 

Reed,  Jill:  Testimony 979 

Rhodes,  Dr.  William:  Testimony 1001 

Robb,  Hon.  Charles  S.: 

Testimony 223 

Prepared  statement 231 

Illegal  Drug  Trafficking  in  the  United  States,  Special  Governor's  Work 

Session,  February  27,  1983 240 

Appendix  A.  The  Governors'  Project 254 

B.  Controlling  Abuse  and  Illegal  Traffic  in  Narcotics 256 

C.  Strategies  for  Drug  Control  Efforts 259 

D.  News  release  from  the  Department  of  Justice 265 

Responses  to  questions  submitted  by  Senator  Paul  Laxalt 267 

Roper,  Roberta:  Testimony 9'74 

Roth,  Prof.  Loren  H.: 

Testimony 828 

Letter  subsequently  sent  to  Senator  Specter,  June  3,  1983,  summarizing 

major  points  in  testimony 833 

Treating  Violent  Behaviors  in  Prisons,  Jails,  and  Other  Special  Institu- 
tional Settings 838 

Lowering  the  Jurisdictional  Age  of  the  Juvenile  Court:  Problems  and 

Prospects  of  Simple  Solutions 872 

American  Psychiatric  Association  Statement  on  the  Insanity  Defense 893 

Disposition  of  Insanity  Defense  Cases  in  Oregon 901 


Roth,  Prof.  Loren  H.— Continued  Page 

Oregon's  Reform  of  the  Insanity  Defense  System 908 

After  Oregon's  Insanity  Defense:  A  Comparison  of  Conditional  Release 

and  Hospitalization 916 

Task  Force  Report  8:  Clinical  Aspects  of  the  Violent  Individual,  American 

Psychiatric  Association 934 

Shattuck,  John: 

Testimony 335 

Prepared  statement 348 

Short,  Jennifer:  Testimony 982 

Smaby,  Jan:  Testimony 996 

Smith,  Hon.  William  French: 

Testimony 5 

Responses  to  Senator  Biden's  questions  regarding: 

Habeas  Corpus  Reform 32 

Exclusionary  Rule  Reform 42 

Death  Penalty 55 

Research  and  Statistics 63 

Justice  Assistance 64 

Tort  Claims  Amendments 87 

Sentencing 92 

Organized  Crime  and  Drug  Enforcement  Task  Forces 104 

Formal  statement  of  the  Department  of  Justice 116 

Snyder,  John  M.:  Testimony 328 

Symms,  Hon.  Steven:  Testimony 321 

Tjoflat,  Gerald  Bard: 

Testimony 638 

Prepared  statement 644 

Judicial  Conference  Sentencing  Proposal,  from  the  Congressional  Record, 

May  26,  1983 664 

Walker,  John  M.,  Jr.: 

Testimony 68 

Prepared  statement 76 

Wilson,  Richard  J.: 

Testimony 505 

Prepared  statement 507 

Zimmerman,  Hon.  Leroy  S.: 

Testimony : 270 

Prepared  statement 285 

Impact  of  Exclusionary  Rule  on  Criminal  Cases 272 


Part  1. — Extradition 

Letter  to  Senator  Laxalt   from   Powell   A.   Moore,   Assistant  Secretary  for 

Legislative  and  Intergovernmental  Affairs 1009 

Comments  and  Recommendations,  S.  220,  William  S.  Kenney,  attorney  at  law.     1012 
Letter  to  Hon.   Paul   Laxalt  from   Arthur  L.   Burnett,   president.   National 
Council  of  U.S.  Magistrates,  September  8,  1983 1015 

Part  2. — Exclusionary  Rule 

Letter  to  Senator  Paul  Laxalt  from  John  E.  Fennelly,  Assistant  State  Attor- 
ney, Stuart,  Florida,  May  18,  1983 1019 

Warrant  Searches  and  the  Exclusionary  Rule,  A  Rule  in  Search  of  a  Reason, 
by  John  E.  Fennelly,  from  The  Prosecutor  (Winter,  1983) 1020 

Excerpt  from  United  States  v.  Leon,  brief  for  the  United  States,  Supreme 
Court  of  the  United  States,  No.  82-1771,  October  Term,  1983 1025 

Part  3. — Capital  Punishment 

Congress  and  Capital  Punishment,  An  Exercise  in  Symbolic  Politics,  by  Bar- 
bara Ann  Stolz,  American  University 1087 

Part  4.— Habeas  Corpus 


Letter  to  Hon.  Paul  Laxalt  from  Ralph  J.  Erickstad,  chairman,  Committee  on 
Federal  Review  of  State  Court  Convictions,  Conference  of  Chief  Justices, 
May  17,  1983,  with  attachments 1111 

Proposals  for  Habeas  Corpus  Reform,  by  William  French  Smith 1116 

Part  5.— S.  829 

Letter  to  Hon.  Paul  Laxalt  from  Norman  Darwick,  Executive  Director,  Inter- 
national Association  of  Chiefs  of  Police,  Inc.,  May  25,  1983 1134 

Testimony  of  the  lACP  on  the  Comprehensive  Crime  Control  Act  of  1983 1135 

Letter  to  the  Hon.  Arthur  L.  Burnett,  president.  National  Council  of  United 
States  Magistrates  from  Jean  F.  Dwyer,  chairman.  Committee  on  Sentenc- 
ing, U.S.  Magistrate,  July  18,  1983 1151 

Part  6.— Additional  Correspondence 

Letter  to  Hon.  Edward  M.  Kennedy  from  Liza  Cheuk  May  Chan,  May  24.  1983     1157 

The  Case  for  Vincent  Chin,  A  Tragedy  in  American  Justice 1158 

Letter  to  Senator  Paul  Laxalt  from  Randy  Sue  Pollock,  chairperson.  Federal 
Practice  Committee,  California  Attorneys  for  Criminal  Justice,  June  30, 
1983 1162 

'See  "Federal  Law  Revision."  Hearings  before  the  Subcommittee  on  Criminal  Justice  of  the 
Committee  on  the  Judiciary,  House  of  Representatives,  97th  Cong.,  1st.  and  2d  sessions.  Serial 
No.  132,  Parts  1,  2,  and  3. 

^See  "The  Habeas  Corpus  Reform  Act  of  1982."  Hearings  before  the  Committee  on  the 
Judiciary,  U.S.  Senate,  97th  Cong.,  2d  sess.  Serial  No.  J-97-108. 

^See  "Reform  of  the  Federal  Criminal  Laws."  Hearings  before  the  Committee  on  the  Judici- 
ary, U.S.  Senate,  97th  Cong.,  1st  sess.  Part  XVI,  Serial  No.  J-97-60. 

*See  "Capital  Punishment."  Hearings  before  the  Committee  on  the  Judiciary,  U.S.  Senate, 
97th  Cong.,  1st  sess.  Serial  No.  J-97-13. 

*See  "Reform  of  the  Federal  Insanity  Defense."  Hearings  before  the  Subcommittee  on  Crimi- 
nal Justice  of  the  Committee  on  the  Judiciary,  House  of  Representatives,  97th  Cong.,  1st.  sess. 

^See  Extradition  Hearings  before  House  Judiciary  Committee,  May  5,  1983. 

'  See  "Federal  Tort  Claims."  Hearinjrs  before  the  Subcommittee  on  Administrative  Law  and 
Governmental  Relations  of  the  Judiciary,  House  of  Representatives,  98th  Cong.,  1st  sess.  Serial 
No.  11. 


WEDNESDAY,  MAY  4,  1983 

U.S.  Senate, 
Subcommittee  on  Criminal  Law, 

Committee  on  the  Judiciary, 

Washington,  D.C. 

The  subcommittee  met,  pursuant  to  notice,  at  10:10  a.m.,  in  room 
226,  Dirksen  Senate  Office  Building,  Hon.  Strom  Thurmond  (chair- 
man of  the  full  committee)  presiding. 

Present:  Senators  Laxalt,  Biden,  Kennedy,  and  Specter. 

Staff  present:  John  F.  Nash,  Jr.,  chief  counsel  and  staff  director; 
Beverly  McKittrick,  majority  counsel;  William  Miller,  general 
counsel;  and  Susan  Fanning,  chief  clerk. 


Senator  Laxalt.  The  subcommittee  will  be  in  order. 

This  is  the  first  of  a  series  of  hearings  which  the  Subcommittee 
on  Criminal  Law  will  hold  on  S.  829,  the  Comprehensive  Crime 
Control  Act  of  1983.  My  good  friend  and  chairman  of  the  Commit- 
tee on  the  Judiciary  will  chair  this  first  day. 

This  bill,  sent  to  Congress  by  President  Reagan,  is  a  package  of 
well-reasoned  proposals  that  do  not  simply  add  to  the  list  of  Feder- 
al statutes  and  Federal  crimes  but  that  make  much  needed  im- 
provements in  the  Federal  criminal  justice  system. 

Crime — violent  crime,  drug-related  crime,  and  organized  crime — 
is  a  major  threat  to  American  society.  S.  829  is  a  comprehensive, 
well-considered  response  to  this  threat.  Most  of  the  parts  of  the 
package  have  been  the  subject  of  hearings  and  votes  in  the  Senate 
in  recent  years.  The  purpose  of  these  hearings  is  to  bring  the 
record  on  these  measures  up  to  date  and  to  provide  a  record  for  the 
new  proposals  in  the  bill.  The  hearings  will  provide  an  opportunity 
for  all  of  the  major  parties  interested  in  Federal  criminal  justice 
reform  to  discuss  the  legislation  and  to  point  out  its  merits  and  its 

I  want  to  thank  the  Attorney  General  and  the  other  distin- 
guished witnesses  from  the  Department  of  Justice  and  from  the 
Treasury  Department  for  leading  off  these  hearings.  The  Depart- 
ment of  Justice  put  this  bill  together  in  its  present  form,  and  the 
subcommittee  looks  forward  to  benefiting  from  the  expertise  of 
these  various  gentlemen  in  our  deliberations. 

At  this  point,  I  would  like  to  turn  the  gavel  over  to  my  distin- 
guished chairman,  Senator  Thurmond. 



The  Chairman  [presiding].  Thank  you  very  much,  Mr.  Chairman. 

I  am  pleased  to  welcome  the  Attorney  General  of  the  United 
States  to  appear  before  the  Subcommittee  on  Criminal  Law,  Senate 
Committee  on  the  Judiciary  to  launch  consideration  of  a  massive 
package  of  criminal  law  amendments  proposed  by  the  administra- 
tion entitled  "The  Comprehensive  Crime  Control  Act  of  1983." 

I  will  be  very  pleased  to  cooperate  with  the  able  chairman  of  this 
subcommittee  in  this  matter.  Since  he  has  to  leave  for  a  confer- 
ence, I  believe,  with  the  President,  I  will  chair  this  session  for  him. 

Mr.  Attorney  General,  we  are  very  pleased  to  have  you  with  us 
this  morning.  No  one  knows  more  than  you  the  toll  violent  crime, 
illegal  drugs,  and  organized  crime  takes  on  this  society.  Various 
polls  and  surveys  over  the  past  few  years  show  that  one-third  of  all 
households  in  the  United  States  are  touched  by  crime  each  year; 
one  in  five  Americans  is  a  victim  of  a  crime  each  year.  The  latest 
available  FBI  crime  clock  figures  show  someone  is  killed  every  23 
minutes,  a  woman  is  raped  every  6  minutes,  and  a  person  robbed 
every  55  seconds.  A  burglary  takes  place  every  8  seconds.  One  of 
the  FBI  major  index  crimes  is  committed  every  2  seconds.  While 
the  FBI  recently  reported  that  serious  crime  dropped  by  4  percent 
in  1982,  such  a  drop  hardly  alters  the  crime  clock  rates  and  leaves 
us  far  behind  in  dealing  with  a  21  percent  rise  in  serious  crime 
since  1977  and  a  walloping  254  percent  since  1962. 

I  do  wish  to  commend  you,  though,  Mr.  Attorney  General,  for  the 
great  work  that  you  have  done,  and  we  are  so  pleased  that  this 
crime  rate  has  been  reduced,  and  I  think  probably  you  are  more 
responsible  than  any  one  individual. 

Having  reviewed  the  problem,  we  must  recognize  that  in  our 
Federal  system  the  State  and  local  authorities  are  primarily  re- 
sponsible for  protecting  our  communities  from  crime.  As  limited  as 
the  Federal  role  may  be  in  this  regard,  however,  the  Congress  and 
administration  have  the  responsibility  to  make  the  Federal  effort 
as  effective  as  possible  and  to  set  an  example  of  excellence  for 

The  Comprehensive  Crime  Control  Act  of  1983  constitutes  a 
major  legislative  contribution  toward  meeting  this  responsibility. 
The  proposal  includes  among  other  things: 

Reform  of  the  bail  laws  to  permit  pretrial  detention  of  dangerous 

A  constitutional  procedure  for  imposition  of  the  death  penalty  in 
Federal  cases  involving  treason,  espionage,  murder,  and  an  attempt 
to  kill  the  President. 

Improvements  to  the  sentencing  system  by  abolishing  parole  and 
most  good  time  credit;  standardizing  sentences  through  guidelines; 
permitting  Government  appeal  of  lenient  sentences  below  the 
guidelines;  and  allowing  a  life  sentence  without  parole  in  the  most 
serious  offenses. 

•  The  opening  remarks  of  Senator  Thurmond  and  text  of  S.  829  given  before  the  U.S.  Senate 
can  be  found  on  p.  S  3076  in  the  March  19,  1983  Congressional  Record. 

Modification  of  the  judicially  created  exclusionary  rule  that  now 
keeps  evidence  out  of  the  criminal  trial  on  the  ground  that  it  was 
illegally  seized. 

Providing  more  emphasis  on  protecting  and  meeting  the  needs  of 
the  victims  and  witnesses  of  crime. 

Improving  the  drug  penalty  structure  of  Federal  law. 

Improving  the  operation  of  the  criminal  forfeiture  laws  applica- 
ble to  organized  crime  and  drug  offenders. 

Modifying  the  current  insanity  defense  and  related  procedures  to 
more  effectively  enhance  the  safety  of  the  community. 

Modifying  Federal  procedures  for  review  of  State  criminal  con- 
victions to  afford  greater  finality  and  deference  to  State  court  deci- 

I  am  looking  forward  to  working  with  this  administration  and 
the  Department  of  Justice  to  enact  the  best  legislation  possible. 

[The  opening  statements  of  Senators  Kennedy  and  Biden  follow:] 

Opening  Statement  of  Hon.  Edward  M.  Kennedy,  a  U.S.  Senator  From  the 

State  of  Massachusetts 

Mr.  Chairman,  I  welcome  these  hearings  on  comprehensive  anticrime  legislation. 
We  face  a  serious  problem  of  crime  in  America,  and  there  is  an  urgent  need  for 
effective  leadership  by  the  Federal  Government. 

There  is  widespread  agreement  on  the  need  for  basic  reforms  in  the  Federal  laws 
on  bail  and  sentencing.  Sentencing  is  a  scandal  that  permits  the  courts  to  play  judi- 
cial roulette  in  determining  whether  defendants  convicted  of  violent  crimes  go  free 
or  go  to  jail.  Almost  every  day,  the  press  reports  the  abuses  caused  by  the  unfet- 
tered discretion  of  judges  in  criminal  sentencing.  Excessively  harsh  sentences  and 
incredible  examples  of  leniency  proliferate  side  by  side,  and  undermine  public  confi- 
dence in  our  system  of  justice. 

Our  outdated  bail  laws  fail  to  protect  the  safety  of  the  community  and  permit  vio- 
lent offenders  to  return  to  the  streets  to  commit  new  crimes  while  awaiting  trial. 
We  also  suffer  from  outdated  provisions  on  organized  crime,  narcotics  crime,  and 
violent  juvenile  crime. 

We  have  worked  long  and  hard  on  these  issues  and  we  know  what  the  needed 
reforms  are.  In  the  area  of  sentencing,  we  must  provide  certainty  of  sentencing, 
guidelines  to  limit  judicial  discretion,  abolition  of  parole,  and  appellate  review  of 
sentences.  In  this  Congress,  I  have  introduced  sentencing  reform  legislation  which  is 
virtually  identical  to  the  measure  which  passed  the  Senate  last  year  by  a  vote  of  95- 

With  respect  to  bail,  judges  must  be  permitted  by  law  to  consider  the  dangerous- 
ness  of  a  defendant  in  determining  whether  and  under  what  conditions  to  permit 
release  on  bail. 

Other  needed  reforms  are  also  clear.  Criminal  forfeiture  statutes  must  be 
strengthened  to  enhance  the  ability  of  prosecutors  to  confiscate  the  assets  of  crimi- 
nal organizations  and  the  proceeds  of  illegal  drug  trafficking.  And  violent  juveniles 
must  be  held  accountable  for  their  crimes.  They  should  be  fingerprinted  and  photo- 
graphed, and  tried  and  sentenced  as  adults,  but  incarcerated  separately  from  adult 
criminals.  These  needed  reforms  are  neither  too  complicated  to  legislate  nor  too  dif- 
ficult to  implement. 

And  we  can  adopt  and  carry  out  all  these  measures  without  jeopardizing  the  basic 
constitutional  rights  of  any  citizen  or  the  civil  liberties  of  our  people. 

Finally,  we  must  make  assistance  to  State  and  local  governments  a  higher  prior- 
ity. Local  police,  and  prosecutors,  and  courts  are  our  front  line  against  crime  and 
adequate  Federal  support  for  their  efforts  must  be  an  essential  component  of  any 
responsible  effort  we  make. 

A  few  years  ago.  Congress  was  in  the  vanguard  of  proposals  like  these  for  wise 
reform.  In  fact,  many  of  them  originated  in  the  bipartisan  hearings  on  crime  held  in 
this  committee  in  the  1970's.  But  in  recent  years,  we  have  fallen  behind  the  States 
in  updating  our  criminal  laws.  Many  of  the  reforms  we  sought  in  Congress  have 
been  introduced,  evaluated,  refined  and  adopted  in  the  States,  while  we  have  failed 
to  act.  While  criminals  rush  to  invent  new  offenses  such  as  computer  fraud  and 

move  crime  into  the  twenty-first  century,  Congress  has  yet  to  bring  the  Federal 
criminal  laws  into  the  twentieth  century. 

There  are  no  easy  answers  to  this  problem.  There  are  no  Kemp-Roth  tax  cuts,  no 
budget  cut  quick  fixes,  no  law  and  order  panaceas  that  will  help  in  fighting  crime. 

But  we  have  made  some  worthwhile  bipartisan  advances  in  this  committee,  and  I 
look  forward  to  even  greater  progress  in  the  weeks  to  come. 

Opening  Statement  of  Hon.  Joseph  R.  Biden,  Jr.,  a  U.S.  Senator  From  the  State 

OF  Delaware 

Mr.  Chairman,  I  am  particularly  pleased  to  welcome  the  Attorney  General  here 
today  because  this  hearing  is  the  first  step  toward  enactment  of  a  package  of  crime 
legislation  in  this  Congress. 

The  Senate  Judiciary  Committee  has  worked  for  over  a  decade  to  develop  a  com- 
prehensive crime  bill  which  would  make  the  reforms  essential  to  a  fair  and  effective 
Federal  criminal  justice  system.  Unfortunately,  partisan  concerns  and  the  unwill- 
ingness of  some  Members  of  the  Senate,  the  House  and  representatives  of  the  ad- 
ministration, to  compromise  prevented  enactment  of  substantial  reform  legislation. 

Last  Congress  a  criminal  law  reform  package  met  with  a  degree  of  success  many 
thought  impossible.  Everyone  in  this  room  knows  how  far  the  crime  package  pro- 
gressed: The  Senate  passed  the  Violent  Crime  and  Drug  Enforcement  Improvements 
Act  of  1982,  (S.  2572).  Although  we  sent  the  bill  to  the  House  very  late  in  the  session 
the  members  of  the  House  Judiciary  Committee  demonstrated  a  willingness  to 
devote  long  hours  to  reach  agreement  on  substantial  portions  of  the  bill.  In  addition 
to  the  final  package,  many  compromises  were  reached  in  bail  and  sentencing 
reform.  In  fact,  insufficient  time  at  the  end  of  the  session  may  have  been  the  major 
factor  which  prevented  final  agreement  in  bail  and  sentencing.  Although  the  Presi- 
dent vetoed  the  final  package  he  expressed  strong  support  for  a  substantial  portions 
of  its  contents.  In  fact,  the  administration-proposed  bill  before  us  today,  the  Compre- 
hensive Crime  Control  Act  of  1983  (S.  829)  clearly  demonstrates  the  administration's 
support  of  the  Senate-passed  bill  by  incorporating  many  of  its  provisions,  including 
bail  reform,  sentencing  reform,  forfeiture  reform,  and  numerous  amendments  to 
current  law  directed  at  violent  crime. 

I  believe  Chairman  Thurmond  will  agree  with  me  that  successful  Senate  and 
House  passage  of  comprehensive  anti-crime  legislation  last  Congress  taught  us  some 
very  important  lessons. 

First,  under  Chairman  Thurmond's  leadership,  the  members  of  the  Judiciary 
Committee  and  ultimately  the  Senate  recognized  the  need  to  compromise  and  deve- 
lope  comprehensive  legislation  with  bipartisan  support.  To  achieve  that  goal  some 
Senators  agreed  to  process  important  anti-crime  bills  as  separate  legislation  because 
they  recognize  that  one  controversial  provision  could  slow  or  halt  progress  on  the 
entire  package. 

Second,  we  found  substantial  agreements  in  our  negotiations  with  Members  of  the 
House  by  deleting  from  the  package  those  provisions  which  would  be  so  controver- 
sial that  they  would  jeopardize  House  passage. 

The  lessons  of  last  Congress  clearly  showed  the  way  to  enactment  into  law  of  com- 
prehensive anti-crime  package  this  Congress:  Members  of  both  parties  must  work 
toward  that  goal  by  demonstrating  a  willingness  to  compromise  and  agreeing  to 
process  controversial  legislation  as  separate  bills  rather  than  in  a  package.  Also, 
Senate  passage  of  a  comprehensive  bill  must  occur  early  in  this  session  to  provide 
sufficient  time  to  reach  agreement  with  our  colleagues  in  the  House. 

The  administration  crime  bill  makes  a  significant  first  step  in  this  process  by  in- 
corporating many  provisions  of  the  bipartisan  bill  of  last  Congress.  However,  some 
provisions  in  the  bill,  which  did  not  pass  last  Congress  appear  to  be  more  of  a  legis- 
lation wish  list  than  an  assessment  of  what  is  likely  to  be  passed  by  both  the  House 
and  Senate  this  Congress.  Regardless  of  our  individual  views  we  all  know  what 
those  provisions  are  because  both  the  Senate  and  House  have  been  through  seem- 
ingly endless  debate,  numerous  amendments,  threatened  filibusters  and  other  delay 
tactics,  in  some  instances  over  more  than  one  Congress. 

We  are  very  close  to  finally  enacting  comprehensive  anti-crime  legislation  into 
law.  We  must  learn  from  our  experience  and  begin  with  the  bill  which  passed  the 
Senate  last  Congress  95  to  1.  Proponents  of  any  additions  to  that  bill  bear  the 
burden  of  proving  that  a  new  provision  will  not  prove  controversial  and  prevent  en- 
actment of  the  entire  package  into  law  in  this  Congress. 

Chairman  Thurmond,  I  am  eager  to  once  again  work  with  you,  the  Criminal  Law 
Subcommittee  chairman.  Senator  Laxalt  and  with  all  of  my  colleagues  on  both  sides 
of  the  aisle. 

The  Chairman.  Mr.  Attorney  General,  we  are  very  pleased  to 
have  you  with  us,  and  we  will  be  honored  now  to  have  you  proceed 
with  your  testimony. 


Mr.  Smith.  Thank  you  very  much,  Mr.  Chairman. 

I  am  very  happy  to  be  here  today  to  testify  on  behalf  of  the  Com- 
prehensive Crime  Control  Act  of  1983. 

Our  bill  is  just  that — comprehensive,  in  the  sense  that  it  con- 
cerns problems  throughout  the  criminal  justice  system.  The  most 
serious  of  these  problems,  however,  are  those  raised  by  the  involve- 
ment of  organized  crime  in  drug  trafficking.  Before  commenting  on 
the  legislation  before  you,  I  would  like  to  take  a  few  moments  to 
review  these  problems  and  our  response  to  them. 

Organized  crime  has  expanded  its  operations  to  include  drug 
trafficking.  Indeed,  most  drug  trafficking  today  is  organized  crime. 

Large-scale  drug  dealers  must  organize  their  operations.  They 
obtain  the  illicit  substances,  or  the  rights  to  the  substances,  over- 
seas. Within  our  borders,  the  drug  dealers  have  set  up  elaborate 
enterprises  for  cutting  the  pure  imported  drugs  and  distributing 
them  over  a  wide  geographical  area. 

And  the  operation  does  not  stop  there.  Drug  money  is  laundered 
through  businesses  set  up  as  "fronts"  for  drug  dealers.  The  profits 
are  then  plowed  back  into  the  drug  business,  as  with  any  major  en- 
terprise. Increasingly,  some  of  the  profits  are  actually  invested  in 
legitimate  businesses — including  real  estate  in  Florida,  restaurants 
in  California,  and  other  businesses  across  the  Nation. 

And  the  tremendous  multibillion  dollar  profits  from  drug  traf- 
ficking are  used  to  finance  the  other  illegal  activities  of  organized 
crime — gambling,  pornography,  prostitution,  extortion,  loanshark- 
ing,  fraud,  weapons  trafficking,  and  public  corruption. 

Through  its  drug  profits,  organized  crime  spawns  a  great  deal  of 
the  crime  in  this  Nation.  In  addition,  illicit  drugs  themselves 
spawn  a  great  proportion  of  crime.  One  recent  study  demonstrated 
that  over  an  11-year  period  some  243  addicts  committed  about  one- 
half  million  crimes — an  average  of  2,000  crimes  each  or  a  crime 
every  other  day — to  support  their  habits.  Half  of  all  jail  and  prison 
inmates  regularly  used  drugs  before  committing  their  offenses.  Ac- 
cording to  a  recent  Rand  study,  addicted  offenders  in  California 
committed  nearly  nine  times  as  many  property  crimes  each  year  as 
nonaddicted  offenders. 

Although  much  remains  to  be  done,  this  administration  has  al- 
ready launched  a  new  and  promising  assault  upon  organized  crime 
and  drug  trafficking.  A  year  ago  last  January,  the  FBI  was  brought 
into  the  drug  fight  for  the  first  time — to  complement  the  excellent 
work  of  the  DEA.  Thereby,  we  gained  not  only  the  FBI's  resources, 
but  also  its  years  of  experience  in  fighting  organized  crime.  Prior 
to  January  1982,  the  FBI  had  no  specific  drug  investigations  under- 
way. As  of  April  25  of  this  year,  the  FBI  had  more  than  1,300 — and 
about  30  percent  of  these  were  joint  investigations  with  the  DEA. 


We  have  in  fact  scored  dramatic  successes  against  organized 
crime.  We  have  indicted  and  convicted  numerous  high-level  mem- 
bers of  syndicate  families — in  some  cities,  the  top  structure  of  orga- 
nized crime  families  regarded  as  untouchable  a  few  years  ago.  In 
the  last  2  years,  we  have  convicted  more  than  1,200  persons  in  or- 
ganized crime  cases — including  more  than  350  members  and  asso- 
ciates of  La  Cosa  Nostra.  In  addition,  more  than  300  La  Cosa 
Nostra  members  and  associates  are  currently  awaiting  trial. 

To  build  on  these  successes,  the  President  announced  last  fall 
perhaps  the  most  significant  assault  on  organized  crime  and  drug 
trafficking  ever  planned.  Critical  in  this  effort  are  the  12  new  re- 
gional task  forces  designed  to  mount  a  coordinated  attack  by  all  of 
the  involved  Federal  agencies  against  organized  drug  trafficking. 
These  task  forces  are  operational — they  have  cases  under  investiga- 
tion. We  expect  each  of  the  task  forces  will  be  fully  staffed  by  the 
end  of  the  summer. 

By  creating  these  task  forces — and  bringing  the  FBI  into  the 
battle  against  drug  trafficking  last  January — we  will  have  approxi- 
mately doubled  our  drug  enforcement  resources  in  one  year. 
Unlike  prior  Federal  drug  efforts  that  focused  on  the  street  level, 
our  new  task  forces  will  concentrate  on  destroying  the  top  levels  of 
organized  drug  trafficking. 

In  addition,  just  last  month  the  White  House  announced  the  cre- 
ation of  a  new  drug  interdiction  group  headed  by  Vice  President 
George  Bush.  This  group  will  be  looking  outward  from  our  borders 
in  an  effort  to  stop  the  movement  of  illicit  drugs  into  this  country. 
This  new  group  will  harness  the  power  of  the  U.S.  Customs,  the 
Coast  Guard  and  the  military  to  deploy  a  first  line  of  domestic  de- 
fense against  illicit  substances  shipped  towards  the  United  States. 
Meanwhile,  within  our  borders,  the  Organized  Crime  Task  Forces 
will  fight  drug  trafficking. 

Although  we  have  made  a  good  beginning  in  this  new  effort 
against  the  most  serious  form  of  crime  in  America,  it  is  essential  to 
the  fight  against  organized  crime  that  the  Congress  enact  the  sig- 
nificant criminal  law  reforms  that  the  President  has  proposed.  Or- 
ganized crime  is  sophisticated  and  will  take  advantage  of  any 
weakness  in  the  law — and  weaknesses  in  each  of  these  areas  have 
been  clearly  identified  through  difficult  and  costly  experience. 

Appearing  before  you  shortly  will  be  Associate  Attorney  General 
Rudolph  Giuliani,  Assistant  Treasury  Secretary  John  Walker,  and 
Assistant  Attorney  General  Lowell  Jensen,  who  will  cover  the 
major  aspects  of  the  bill  in  more  detail.  Right  now  I  would  like 
briefly  to  note  several  areas  where  we  believe  reform  is  badly 

We  propose  reform  of  the  Federal  bail  system  by  authorizing  the 
pretrial  detention  of  defendants  shown  to  be  dangerous  to  the  com- 
munity and  by  reversing  the  current  presumption  in  favor  of  bail 
pending  appeal.  This  has  been  the  law  in  the  District  of  Columbia, 
and  it  would  restore  the  discretion  vested  in  Federal  judges  prior  to 
the  Bail  Reform  Act  of  1966.  The  courts  should  be  specifically  au- 
thorized to  inquire  into  the  source  of  bail,  and  they  should  refuse 
to  accept  money  or  property  that  will  not  reasonably  ensure  a  de- 
fendant's appearance  at  trial. 

We  propose  sentencing  reform  in  order  to  reduce  the  consider- 
able disparity  in  the  sentencing  process  and  also  to  restore  truth  in 
sentencing.  Specifically,  we  propose  abolishing  the  Parole  Commis- 
sion and  establishing  a  system  of  uniform,  determinate  sentencing; 
authorizing  Government  appeal  of  sentences;  and  restructuring  the 
entire  range  of  criminal  fines  and  prison  terms. 

Determinate  sentencing  improves  the  ability  of  the  courts  to 
impose  a  just,  visible  punishment  that  reflects  a  measured  balance 
of  society  s  interests.  This  bill  includes  provision  for  a  new  level  of 
mandatory  sentencing  for  violent  crime,  and  it  would  serve  to  en- 
hance the  deterrent  effect  of  imprisonment  where  imposed  in 
proper  cases  in  the  area  of  "white  collar"  crime  such  as  fraud,  anti- 
trust, and  tax  cases  in  particular. 

We  propose  making  criminal  forfeiture  available  in  all  major 
drug  trafficking  cases.  We  must  strengthen  procedures  for  "freez- 
ing' forfeitable  assets  pending  judicial  action,  expand  the  classes  of 
property  subject  to  forfeiture,  and  facilitate  the  administrative  for- 
feiture of  conveyances  and  other  property  in  uncontested  cases.  We 
must  provide  specific  authority  for  the  forfeiture  of  the  proceeds  of 
an  "enterprise"  acquired  or  maintained  in  violation  of  the  RICO 

We  also  propose  modification  of  the  exclusionary  rule,  which  has 
substantially  hampered  our  law  enforcement  efforts.  The  suppres- 
sion of  evidence  has  freed  the  clearly  guilty,  diminished  public  re- 
spect for  the  law,  distorted  the  truth  finding  process,  chilled  legiti- 
mate police  conduct,  and  put  a  tremendous  strain  on  the  courts.  A 
recent  National  Institute  of  Justice  report  found  that  when  felony 
drug  arrests  were  not  prosecuted  in  California,  30  percent  of  the 
time  it  was  for  search  and  seizure  reasons.  It  also  found  that  "[t]o  a 
substantial  degree,  individuals  released  because  of  search  and  seiz- 
ure problems  were  those  with  serious  criminal  records  who  ap- 
peared to  continue  to  be  involved  in  crime  after  their  release." 

It  is  time  to  bar  the  use  of  the  exclusionary  rule  when  a  law  en- 
forcement officer  has  acted  in  good  faith,  reasonably  believing  his 
action  to  have  been  legal.  This  modification  of  the  exclusionary 
rule — which  is  already  the  law  in  the  fifth  and  eleventh  circuits — 
would  by  itself  do  a  great  deal  to  restore  public  confidence  in  our 
criminal  justice  system. 

Another  reform  concerns  the  insanity  defense.  It  is  used  in  only 
a  small  percentage  of  criminal  cases — and  it  is  used  successfully  in 
an  even  smaller  percentage.  Nevertheless,  the  public  attention  re- 
ceived by  those  cases  has  fully  exposed  glaring  flaws  in  that  de- 
fense. It  is  for  this  reason  that  the  administration  proposed  reform 
of  the  insanity  defense  to  limit  its  use  to  those  who  are  unable  to 
appreciate  the  nature  or  wrongfulness  of  their  acts.  Under  our 
original  proposal,  the  burden  would  rest  on  the  defendant  to  estab- 
lish insanity  by  clear  and  convincing  evidence. 

Already,  our  original  proposal — plus  public  concern  about  the 
abuse  of  the  insanity  defense — has  moved  many  knowledgeable  per- 
sons to  rethink  the  issue.  Committees  of  the  American  Bar  Associ- 
ation are  considering — and  the  American  Psychiatric  Association 
has  adopted — worthy  proposals  for  reform.  Those  proposals  would 
eliminate  the  second — or  "control" — prong  of  the  two-part  ALI- 
Model  Penal  Code  test.  In  other  words,  they  would  limit  the  insan- 


ity  defense  to  those  situations  in  which,  as  the  result  of  mental  dis- 
ease or  defect,  a  defendant  could  not  appreciate  the  wrongfulness 
of  his  conduct.  Combined  with  requiring  the  defendant  to  prove  by 
clear  and  convincing  evidence  that  he  did  not  appreciate  the 
wrongfulness  of  his  conduct,  this  approach  would  represent  a  sub- 
stantial improvement  over  present  law.  By  supporting  such  an  ap- 
proach, we  hope  to  fashion  a  modification  of  the  insanity  defense 
that  will  enlist  a  broad  base  of  support — and  insure  speedy  reform 
in  the  Congress. 

As  several  members  of  the  Supreme  Court — and  other  concerned 
citizens — have  pointed  out,  one  of  the  greatest  problems  facing  our 
legal  system  is  the  overload  of  cases  in  the  courts.  Too  much  busi- 
ness insures  that  the  cases  most  in  need  of  prompt  judicial  atten- 
tion may  not  receive  it.  As  one  observer  noted,  due  process  of  law 
risks  becoming  overdue  process  of  law. 

To  ease  at  least  some  of  the  burdens  on  the  courts,  we  also  pro- 
pose a  revision  of  the  Federal  habeas  corpus  laws.  Our  reform 
would  impose  a  statute  of  limitations  and  provide  that  issues  fully 
litigated  in  State  courts  would  not  be  subject  to  relitigation  in  Fed- 
eral courts.  The  purpose  of  this  reform  is  to  restore  a  degree  of  fi- 
nality to  criminal  convictions,  but  an  incidental  effect  would  be  the 
reduction  of  substantial  burden  on  the  Federal  courts.  State  prison- 
ers filed  more  than  8,000  habeas  cases  in  Federal  court  just  last 
year.  The  only  thing  to  commend  the  vast  majority  of  those  cases, 
to  quote  Judge  Learned  Hand,  "is  the  hardihood  in  supposing  they 
could  possibly  succeed." 

The  legislation  before  you  now  includes  all  of  these  proposals 
plus  more  than  20  others.  This  comprehensive  criminal  law  reform 
bill  collects  in  one  place  all  of  the  most  necessary  changes — includ- 
ing, for  example,  a  constitutionally  sound  Federal  death  penalty.  It 
also  includes  provisions  concerning  the  Tort  Claims  Act,  the  Jus- 
tice Assistance  Act,  drug  enforcement  penalties,  and  surplus  Feder- 
al property. 

In  drafting  this  bill,  we  were  ever  mindful  of  the  need  to  safe- 
guard individual  liberty.  But  we  also  recognized  that  the  most  basic 
individual  liberty  is  freedom  from  violence,  and  that  liberty  can  be 
secured  only  by  effective  and  vigorous  enforcement  of  the  criminal 
laws.  As  Judge  Hand  recognized  50  years  ago:  "Our  dangers  do  not 
lie  in  too  little  tenderness  to  the  accused.  What  we  need  to  fear  is 
the  archaic  formalism  and  the  watery  sentiment  that  obstructs, 
delays,  and  defeats  the  prosecution  of  crime." 

That  concludes  my  opening  statement.  Rudy  Giuliani,  John 
Walker,  and  Lowell  Jensen  are  here  to  discuss  the  legislation  in 
more  detail  and  to  answer  any  questions  you  may  have. 

Thank  you  very  much. 

The  Chairman.  Thank  you,  Mr.  Attorney  General. 

I  understand  that  you  have  another  appointment  and  cannot 
remain  longer.  So  we  will  just  reserve  questions  for  the  other  wit- 

We  appreciate  your  appearance. 

Mr.  Smith.  Thank  you  very  much. 

Senator  Kennedy.  Could  I  just  have  one  question? 

Would  the  Senator  yield? 

The  Chairman.  Senator  Kennedy. 

Senator  Kennedy.  Mr.  Attorney  General,  just  one  question  on, 
really,  it  deals  with  the  strategy. 

I  think  that  we  have  worked  out,  over  a  long  period  of  time,  on 
this  committee,  a  bipartisan  effort  which  has  coalesced  around  the 
areas  in  which  there  can  be  substantial  agreement.  I  must  say  that 
the  proposal  made  by  the  administration  includes  a  variety  of  dif- 
ferent elements  which  are  extremely  controversial  both,  I  think, 
within  this  committee,  and  certainly  on  the  floor  of  the  Senate. 

I  am  just  wondering,  without  getting  into  the  details  of  the  par- 
ticular provisions — I  know  you  have  to  run — what  is  your  own 
strategy?  The  Democrats  have  put  in  their  program,  the  Republi- 
cans have  put  in  their  program,  and  there  is  substantial  agreement 
on  a  number  of  areas  that  can  have  a  real  impact.  Why  are  we  not 
trying  to  take  the  elements  of  both  programs  on  which  we  agree 
and  move  that  rapidly  through  the  Senate,  and  see  what  can  be 
done  in  the  House. 

I  must  say  as  somebody  who  has  been  here  over  20  years,  I  have 
seen  the  enormous  diversity  on  law  enforcement  in  the  early  years, 
and  then  the  coming  together  during  the  period  of  the  late  seven- 
ties. I  think  we  are  right  back  in  the  situation  where  we  have 
added  too  much  in  terms  of  this  legislation. 

Maybe  you  just  believe  as  a  matter  of  principle  that  the  contro- 
versial issues  have  to  be  so  included.  But  as  a  practical  matter,  I 
think  that  there  is  a  very  little  likelihood  that  they  are  going  to  be 
enacted  into  law.  There  is  a  real  chance  of  jeopardizing  the  whole 
crime  package,  which  I  believe  the  President  is  committed  to,  I 
know  you  are,  and  many  members  are. 

I  would  just  be  interested  if  you  did  have  2  minutes  to  comment 
on  what  your  own  view  and  strategy  is,  because  there  are  strong 
views  not  only  in  this  House,  but  as  you  understand,  in  the  House 
of  Representatives,  on  a  variety  of  these  amendments.  Yet  there  is 
very  substantial  agreement  on  the  vast  majority  of  the  package, 
whether  it  is  sentencing,  whether  it  is  the  bail  reform,  whether  it 
is  violent  juvenile  offenders,  provisions  dealing  with  drug  traffick- 
ers, and  a  variety  of  other  provisions  which  both  the  Republicans 
and  Democrats  have  worked  on. 

Would  we  not  be  wiser  to  take  those  areas  where  we  have  sub- 
stantial agreement,  and  move  those  as  a  package,  and  deal  with 
the  controversial  issues,  such  as  the  death  penalty  on  a  separate 

Are  we  at  a  point  where  we  want  to  isolate  those  individuals  who 
oppose  the  controversial  items  and,  make  them  appear  like  they 
are  against  doing  something  on  crime,  or  are  we  just  trying  to  get 
this  passed? 

Mr.  Smith.  Well,  Senator,  we  feel,  as  you  know,  that  all  of  the 
proposals  in  that  package  are  very  badly  needed.  It  is  true,  and  cer- 
tainly true  in  the  Senate  here,  that  a  bill  was  passed  last  year  by  a 
vote  of  95  to  1.  It  never  got  out  of  the  House. 

Senator  Kennedy.  We  have  other  assurances  from  the  chairman 
of  the  House  Committee  on  that  issue. 

Mr.  Smith.  The  Senate  certainly  has  done  a  good  deal  with  re- 
spect to  making  some  of  the  changes  that  we  think  are  needed.  The 
Congress  as  a  whole  has  done  very  little,  and  we  think  that  it  is 

25-694  0-84-2 


important  that  all  of  these  proposals  be  seriously  considered  and 
acted  on. 

Now,  it  may  very  well  be,  as  you  say,  that  there  are  differences 
of  opinion.  I  am  sure  there  are,  with  respect  to  a  certain  number  of 
these  proposals.  But  it  does  seem  to  me  that  at  least  the  floor  of 
each  House  ought  to  have  the  opportunity  to  vote  on  each  of  those 
proposals  as  a  package,  or  otherwise. 

Now,  the  strategy  of  how  it  is  put  together,  of  course,  is  really 
the  responsibility  of  this  committee  and  the  Senate. 

Senator  Kennedy.  Well,  it  is  also  yours,  hopefully,  as  well.  You 
are  influenced  and  guided  by  the  committee  here,  and  by  the  ad- 

Mr.  Smith.  It  is  ours.  Senator  Kennedy,  and  we  think  we  have 
done  that  by  putting  together  this  package,  and  submitting  it  to 
both  the  Senate  and  the  House.  We  would  like  to  see  all  of  those 
proposals  considered,  because  we  think  every  one  of  them  is  impor- 

Senator  Kennedy.  Do  you  think  adding  a  death  penalty  to  this 
particular  package  assists  in  moving  this  whole  package  through, 
in  terms  of  the  Senate  of  the  United  States,  given  what  a  number 
of  the  Members  of  the  Senate  have  said? 

Clearly,  you  know,  there  is  always  the  possibility  of  cloture,  fili- 
busters, and  all  the  rest  of  it.  But  as  someone  who  has  been  in- 
volved in  the  process,  and  who  is  opposed  to  the  death  penalty,  I 
certainly  have  indicated  I  would  never  filibuster,  but  I  think  there 
are  others  who  would.  There  has  been  a  serious  effort  on  a  number 
of  the  consensus  areas  which  I  have  just  mentioned  here. 

If  we  could  have  a  chance  to  vote  on  those,  and  move  those 
through,  and  get  the  House  of  Representatives  to  do  likewise,  we 
will  have  accomplished  something,  but  it  is  inconceivable  to  me 
that  you  expect  that  with  your  package,  you  are  really  doing  a 
great  deal  more  than  posturing,  quite  frankly. 

I  have  a  lot  of  respect  for  you  and  the  Department,  but  it  just 
seems  to  me  that  the  better  part  of  wisdom  is  to  try  to  find  the 
areas  where  there  is  agreement,  and  there  are  many,  and  they  are 
extremely  important,  and  they  can  make  some  important  differ- 
ence in  trying  to  deal  with  crime,  and  get  those  passed,  and  I 
would  dare  say  that  you  could  take  8  of  10  or  the  principal  items  in 
there  and  pass  them  through  the  Senate  this  afternoon. 

But  I  just  raise  this  as  a  question  of  strategy,  because  I  am  very 
interested  in  the  issue,  as  are  the  people  in  my  State,  and  all  across 
the  country,  and  I  am  not  too  sure  that  we  are  not  doing  their  in- 
terests a  disservice  by  not  moving  the  controversial  issues  separate- 
ly from  the  consensus  package. 

But  perhaps  later  down  the  road,  when  push  comes  to  shove,  we 
can  come  back  to  you  and  talk  to  you  about  a  strategy,  because  I 
think  we  are  going  to  be  there. 

I  thank  the  Chair. 

Mr.  Smith.  We  certainly  hope  that  all  of  these  proposals  do  get 
to  the  floor  and  are  voted  on  by  both  Houses.  We  think  they  are  all 

Now,  how  they  get  there,  of  course,  is  another  matter. 

Senator  Biden.  Mr.  Attorney  General,  could  I  ask  one  question? 

The  Chairman.  Senator  Biden. 


Senator  Biden.  I  apologize  for  being  late,  General. 

I  want  to  echo  the  statements  that  Senator  Kennedy  just  made, 
and  clarify  one  thing. 

The  Senate  and  the  House  did  pass  a  very  significant  bill  last 
year,  the  most  significant  anticrime  legislation  that  has  come 
through  Congress  in  the  last  15  years.  Now  I  understand  the  ad- 
ministration did  not  like  it.  The  President  vetoed  it,  not  Congress. 
We  passed  the  bill  and  it  did  not  have  sentencing  or  bail  reform  in 

We  did  get  a  commitment,  with  Herculean  efforts,  and  with  your 
Department  aiding  us,  from  the  chairman  of  the  House  Judiciary 
Committee,  to  report  a  sentencing  bill  and  a  bail  bill  this  Congress. 

The  number  three  man  on  this  committee,  Senator  Laxalt,  has 
agreed  to  report  out  a  sentencing  bill  by  June  1,  so  that  we  can 
quickly  send  a  bill  to  the  House. 

I  want  to  emphasize  that  we  did  pass  a  significant  piece  of  legis- 
lation through  both  Houses  last  year  and  put  it  on  the  President's 
desk.  I  do  not  think  anyone  who  has  been  here  even  3  days  can 
believe  that  we  are  going  to  be  able  to  pass  in  its  entirety  either 
the  crime  package  that  Senator  Kennedy  and  I  introduced  on  the 
Democratic  side  (S.  830),  or  this  package  (S.  829). 

And  I  really  think  that  if  we  are  going  to  play  politics,  and  say 
that  we  are  going  to  get  every  element  of  the  package  and  vote 
each  up  or  down,  and  make  it  an  election  issue,  I  can  assure  you 
that — not  because  I  will  do  anything  about  it  but  because  of  the 
nature  of  the  beast — we  will  get  nothing  done  here. 

We  have  a  golden  opportunity  to  keep  the  House  to  its  word  on 
sentencing,  and  a  golden  opportunity  on  bail,  two  of  the  four  most 
important  aspects  of  any  legislation  that  has  been  proposed  here, 
and  85  percent  of  everything  else  that  is  in  here,  I  think  it  can 

I  hope  we  can  work  with  you,  General,  on  trying  to  come  up  with 
a  bipartisan  package  that  was  engineered,  like  the  one  engineered 
by  the  chairman  of  this  committee  last  year. 

Mr.  Smith.  Well,  we  certainly  agree  with  most  of  thie  provisions 
of  the  bill  that  you  are  referring  to.  We  do  not  think  that  it  was 
anywhere  nearly  as  extensive  as  it  should  have  been,  or  as  this 
package  is,  or  as  what  I  hope  the  Congress  will  do  this  session. 

As  you  know,  that  veto  was  for  completely  independent  reason, 
not  having  to  do  with  the  merits  of  any  of  the  proposed,  crime 

Senator  Biden.  Thank  you. 

The  Chairman.  I  might  say.  General,  that  it  is  my  intention,  if 
we  can,  to  get  this  package  before  the  full  committee,  and  pass  as 
much  of  it  as  we  can.  If  the  committee  votes  out  certain  sections, 
well  that  will  be  the  privilege  of  the  committee.  I  certainly  appreci- 
ate the  spirit  of  cooperation  of  Senator  Kennedy  and  Senator  Biden 
with  respect  to  many  of  these  provisions. 

Senator  Kennedy.  I  must  say  that  the  Chair  has  been,  since  we 
started,  extraordinarily  cooperative  and  responsive.  There  have 
been  a  number  of  different  areas  that  I  know  that  he  and  I  and 
other  members  have  differed  on,  but  he  has  been  persistent  in 
trying  to  see  that  we  are  able  to  get  passed  what  can  make  a  differ- 
ence on  this  issue. 


I  would  just  hope  that  we  could  could  continue  in  that  spirit. 

Senator  Biden.  There  is  no  way  that  we  can  pass  anything  with- 
out expending  political  capital.  Senator  Kennedy  has  expended  po- 
litical capital  from  the  folks  to  the  left  who  are  unhappy  with  the 
idea  that  he  would  not  filibuster  the  death  penalty  and  many  other 

Senator  Thurmond  expended  a  great  deal  of  political  capital  by 
agreeing  to  the  fact  that  he  would  not  allow  certain  provisions  to 
come  up  in  the  package  we  had  last  time.  The  only  way  that  we 
can  legislate  around  here  is  to  have  people  who  are  willing  to  legis- 
late and  expend  political  capital.  Both  of  these  men  have  demon- 
strated that,  although  they  come  from  opposite  perspectives,  and  I 
hope  that  the  administration  can  demonstrate  that  same  kind  of 
willingness  to  expend  some  political  capital,  and  get  something 

Mr.  Smith.  Well,  we  very  much  appreciate  the  actions  taken  by 
the  Senate  in  the  last  Congress.  We  certainly  want  to  do  every- 
thing that  we  can  do  to  cooperate  and  work  with  this  committee 
and  all  of  those  involved  in  connection  with  the  current  package, 
because  what  we  are  talking  about  is  a  very  important  public  inter- 
est issue.  I  think  we  all  have  responsibility,  and  we  certainly  all 
want  to  cooperate  to  the  fullest  extent.  I  can  certainly  say  on 
behalf  of  the  administration  that  we  intend  to  do  just  that. 

Senator  Biden.  We  are  happy  to  cooperate. 

The  Chairman.  I  might  say,  Mr.  Attorney  General,  that  I  favor 
the  package.  I  think  it  is  an  excellent  package. 

I  would  be  very  pleased  to  see  it  passed  just  as  it  was  submitted 
to  us,  and  I  think  we  can  take  it  up  in  the  committee,  but  I  cannot 
assure  you  that  every  provision  in  the  package  will  be  approved. 
That  will  be  up  to  the  committee.  We  will  just  have  to  vote  on  each 
provision  in  the  committee,  but  we  will  do  the  best  we  can. 

Thank  you  very  much  for  your  appearance. 

Mr.  Smith.  Thank  you. 

The  Chairman.  Our  next  witnesses  are  the  Associate  Attorney 
General,  Rudolph  Giuliani,  the  Department  of  Justice;  Assistant 
Attorney  General  Lowell  Jensen,  the  Department  of  Justice;  and 
John  Walker,  the  Department  of  the  Treasury. 

You  know  we  approved  your  nomination  in  the  District  of  New 


Mr.  Giuliani.  Yes,  I  did,  Mr.  Chairman.  Thank  you  very  much. 

Mr.  Chairman,  members  of  the  subcommittee 

The  Chairman.  The  Department  of  Justice,  I  believe,  has  a  very 
full  statement  on  this  matter.  I  think  we  might  place  that  in  the 
record  and  have  the  witnesses  summarize  significant  joints  as  they 
see  fit. 


Senator  Kennedy.  Mr.  Chairman,  could  I  include  an  opening 
statement,  at  an  appropriate  place? 

The  Chairman.  Without  objection,  the  opening  statement 

Senator  Kennedy.  And  I  have  just  one  or  two  questions,  both  on 
the  bail  and  sentencing.  Some  differences  in  where  we  were  last 
year,  but  I  would  like  to  just  submit  those,  if  I  could,  for  the  record. 

The  Chairman.  Without  objection,  the  opening  statement  of  Sen- 
ator Kennedy,  and  the  opening  statement  of  Senator  Biden  will 
follow  my  opening  statement,  if  that  is  agreeable. 

You  gentlemen  may  proceed. 

Mr.  Giuliani.  Mr.  Chairman,  members  of  the  subcommittee,  I 
appreciate  this  opportunity  to  testify  regarding  the  President's 
Comprehensive  Crime  Control  Act  of  1983. 

We  have  submitted  for  the  record  a  lengthy  written  statement, 
so  what  I  would  do,  Mr.  Chairman,  is  briefly  summarize  some  of 
the  provisions  of  the  bill. 

Assistant  Attorney  General  Jensen  will  summarize  others,  and 
Assistant  Secretary  of  the  Treasury,  John  Walker,  several  sections. 
I  will  cover  bail  reform,  insanity  defense  reform,  Federal  interven- 
tion in  State  proceedings,  surplus  property  amendments,  and  sen- 
tencing reform. 

Mr.  Jensen  will  cover — we  both  will  cover  sentencing  reform — 
the  exclusionary  rule,  justice  assistance,  drug  enforcement  amend- 
ments, and  capital  punishment;  and  Mr.  Walker  will  cover  forfeit- 
ure and  the  Federal  Tort  Claims  Act. 

Mr.  Chairman,  in  our  view,  the  first  title  of  the  administration's 
crime  bill  is  certainly  one  of  the  most  significant,  that  is,  bail 

Unfortunately,  the  shortcomings  of  current  law  are  most  evident 
when  we  are  dealing  with  the  most  serious  criminal  offenders,  ha- 
bitual or  violent  offenders,  and  the  leaders  of  the  drug  trafficking 

In  Miami,  for  example,  although  the  average  money  bond  for 
drug  defendants  is  $75,000,  17  percent  of  these  defendants  never 
appear  for  trial.  For  them,  money  bonds  are  nothing  more  than  a 
cost  of  doing  business,  and  a  means  of  escaping  prosecution.  For 
many  nondrug  defendants,  bail  is  a  means  of  securing  release  from 
custody  so  that  they  can  continue  preying  upon  the  public. 

In  a  Michigan  case,  late  last  year,  a  particularly  violent  bank 
robber,  George  Gibbs,  was  released  from  Federal  custody  on  $25,000 
bail,  and  4  days  later  was  arrested  for  holding  up  a  second  bank 
and  shooting  a  local  police  officer  in  the  process  of  attempting  his 

In  short,  Federal  bail  laws  do  not  adequately  protect  the  public 
from  violent  criminals  and  dope  traffickers.  We  recommend  that 
the  courts  be  required  to  consider  danger  to  the  community,  as 
well  as  risk  of  flight  in  making  bail  decisions. 

It  is  difficult  for  many  laymen  to  believe  that  Federal  bail  laws 
now  look  only  to  the  flight  issue.  Presently,  Federal  judges  making 
release  decisions  as  to  demonstrably  dangerous  defendants  face  a 
dilemma.  They  may  release  the  defendants  despite  the  danger  that 
he  poses  to  public  safety,  or  they  can  attempt  to  find  some  reason, 
such  as  risk  of  flight,  to  justify  a  high  money  bail  which  the  de- 
fendant cannot  meet. 


In  short,  judges  too  often  find  it  necessary  to  choose  between  pro- 
tecting public  safety,  which  may  require  intellectually  dishonest 
findings,  or  applying  the  law  as  presently  written,  and  releasing 
such  defendants,  recognizing  the  danger  that  they  pose  to  the  com- 

Although  the  provision  in  our  bail  reform  proposal  authorizing 
consideration  of  a  defendant's  dangerousness  in  setting  release  con- 
ditions, and  a  limited  category  of  cases  as  the  basis  of  denying  re- 
lease altogether,  is  probably  the  most  important  concept  in  the  bail 
reform  title,  there  are  other  provisions  that  are  equally  significant. 
The  bail  title,  for  example,  clearly  authorizes  courts  to  inquire  into 
the  source  of  property  that  will  be  used  to  post  bond,  and  to  reject 
property  derived  from  criminal  activity.  The  bail  title  would  also 
make  penalties  for  bail  jumping  commensurate  with  those  applica- 
ble to  the  underlying  criminal  offense  with  which  the  defendant  is 
charged,  in  requiring  that  such  bail-jumping  penalty  run  consecu- 
tively with  other  prison  terms  imposed. 

The  bill  also  shifts  the  current  presumption  favoring  release  on 
bail  following  conviction  and  pending  appeal,  so  that  the  defendant 
is  required  to  show,  in  order  to  secure  postconviction  release,  that 
he  will  not  flee,  or  pose  a  danger  to  the  community,  and  that  his 
appeal  raises  a  substantial  question  of  fact  or  law  likely  to  result  in 
reversal  of  his  conviction. 

To  me,  this  is  one  of  the  most  absurd  provisions  in  the  Federal 
law.  After  a  person  now,  under  current  Federal  law,  is  convicted  of 
a  crime,  the  presumption  operates  in  favor  of  that  person  being  re- 
leased. That,  in  essence,  is  having  exhausted  the  rights,  not  of  the 
accused,  or  those  who  might  possibly  be  presumed  innocent,  but 
rather  elevating  the  rights  of  the  convicted  over  the  rights  of  the 
public  and  society. 

It  was  an  absolutely  absurd  extension  of  the  bail  laws,  and  prac- 
tically it  results  in  most  Federal  defendants,  after  conviction,  being 
released  on  bail,  and  not  being  incarcerated  for  a  year,  a  year  and 
a  half,  and  many  of  our  defendants,  many  of  our  fugitive  defend- 
ants, are  in  that  category,  those  who  have  already  been  convicted 
of  crimes. 

The  second  aspect  of  this  that  is  very  important  is  that,  with  all 
the  changes  that  have  been  made  in  drug  enforcement  as  outlined 
by  the  Attorney  General,  the  increase  in  the  number  of  FBI  agents 
now  doing  drug  investigations,  that  were  not  doing  drug  investiga- 
tions a  year  ago,  and  18  months  ago,  an  increase  of  about  600  or 
700  agents,  the  task  force  increases,  which  will  be  an  additional 
1,000  agents,  doing  drug  cases,  there  is  no  reason  to  believe  that, 
without  a  change  in  our  bail  laws,  the  result  of  their  efforts  will 
not  be  just  a  commensurate  increase  in  the  number  of  fugitives — 
drug  fugitives. 

At  last  count  we  had  a  little  under  2,000  drug  agents  and  over 
3,000  drug  fugitives.  There  is  no  reason  to  believe  that  when  we 
have  4,000  or  5,000  drug  agents,  we  would  not  have  7,000  or  8,000 
drug  fugitives,  unless  the  bail  laws  are  changed  in  the  way  in 
which  this  committee  has  already  considered  it  and  we  are  propos- 

Another  important  part  of  the  President's  crime  bill  is  title  V,  to 
reform  the  insanity  defense  now  applicable  in  the  Federal  criminal 


justice  system.  Although  the  insanity  defense  is  used  in  compara- 
tively few  Federal  cases,  the  defense  raises  fundamental  issues  of 
criminal  responsibility  which  the  Congress  should  address,  and, 
also,  in  assessing  how  often  the  defense  is  used,  one  must  also  look 
to  any  number  of  cases  where  a  plea  results  or  a  disposition  results 
in  which  the  defendant,  instead  of  being  convicted,  is  placed  in  a 
mental  institution  or  is  civilly  committed. 

And,  in  fact,  under  State  systems  that  happens  quite  frequently. 
As  a  result  of  the  Hinckley  case,  there  has  been  a  careful  review  of 
the  insanity  defense,  and  a  consensus  has  emerged  for  narrowing  of 
the  defense,  particularly  the  volitional  arm  of  the  defense,  as  it  is 
now  used  in  Federal  courts,  which  focuses  upon  the  ability  of  the 
defendant  to  control  his  conduct. 

As  the  American  Psychiatric  Association  noted  in  December  of 
last  year,  the  line  between  an  irresistible  impulse  and  an  impulse 
not  resisted  is  probably  no  shorter  than  that  between  twilight  and 

Since  the  experts  themselves  recognized  a  virtual  impossibility  of 
determining  whether  the  defendant  can  or  cannot  control  his  con- 
duct, we  propose  to  limit  the  insanity  defense  to  the  so-called  cogni- 
tive arm,  that  is,  a  defendant  would  be  deemed  not  guilty  by 
reason  of  insanity  only  if,  as  a  result  of  mental  disease  or  defect,  he 
was  unable  to  appreciate  the  nature  and  quality  of  the  wrongful- 
ness of  his  acts. 

Otherwise,  mental  disease  or  defect  would  not  constitute  a  de- 
fense. Furthermore,  opinion  evidence  by  psychiatrists  on  the  ulti- 
mate question  of  whether  the  defendant  had  the  mental  state  or 
condition  constituting  either  an  element  of  the  crime  or  a  defense 
would  be  prohibited,  and  the  defendant  would  have  the  burden  of 
proving  his  insanity  by  clear  and  convincing  evidence. 

We  believe  this  reform  would  bring  insanity  issues  back  into  the 
realm  where  psychiatric  witnesses  can  provide  reliable  evidence. 
The  question  for  the  jury  would  be  whether  the  defendant  knew 
what  he  was  doing  or  that  what  he  was  doing  was  wrong. 

Although  we  frankly  believe  that  even  further  narrowing  of  the 
insanity  defense  would  be  desirable,  to  look  only  to  the  issue  of 
mens  rea,  the  approach  set  out  in  the  President's  crime  bill  would 
represent  a  major  improvement  over  existing  law,  and  it  is  an  ap- 
proach that  we  believe  can  command  overwhelming  support  in  the 

I  note  that,  on  this  issue,  the  administration  last  year  had  pro- 
posed returning  just  to  the  mens  rea  approach.  In  other  words,  re- 
stricting the  insanity  defense,  just  to  situations  where  a  person 
could  establish,  or  the  Government  could  not  establish,  that  the 
person  knew  what  he  was  doing  or  intended  the  consequences  of 
his  act. 

As  a  result,  really,  of  consultations  with  the  chairman,  with 
other  members  of  this  committee,  and  our  assessment  of  what  is 
realistic,  as  opposed  to  what  we  would  absolutely  prefer,  we  have 
modified  our  position  to  one  which  we  think  is  a  more  realistic  one, 
and  one  that  was  supported  by  this — by  a  number  of  members  of 
this  committee  last  year,  and  is  now  essentially  supported  by  the 
American  Bar  Association  and  the  American  Psychiatric  Associ- 


I  offer  that  as  an  example  of  how  we  are  more  than  wilHng  to 
compromise,  if  we  can  achieve  improvements  over  current  law, 
even  if  we  cannot  get  exactly  or  precisely  what  it  is  that  we  would 
prefer  in  the  first  instance. 

One  of  the  provisions  of  the  President's  crime  bill  that  would  be 
of  greatest  benefit  to  State  and  local  law  enforcement  authorities  is 
title  VI,  which  would  limit  Federal  judicial  interference  in  State 
court  adjudications  pursuant  to  the  Federal  habeas  corpus  statutes. 

The  abuse  of  Federal  collateral  remedies  has  been  a  a  growing 
concern  in  recent  years  among  State  and  Federal  officials  responsi- 
ble for  the  prosecution  of  crime.  The  concern  has  been  equally 
great  among  State  and  Federal  judges. 

Indeed,  a  majority  of  the  Justices  of  the  Supreme  Court  have 
strongly  criticized  the  current  operation  of  Federal  habeas  corpus, 
and  have  called  for  basic  reforms. 

Under  the  present  system,  there  can  never  be  an  end  to  the  liti- 
gation of  a  criminal  case,  since  habeas  corpus  is  available  without 
limitation  of  time,  and  with  no  limit  on  repetitive  filings  by  the 
same  prisoner. 

Criminal  justice  resources  of  the  State  and  Federal  governments 
are  squandered  in  litigating  the  redundant  and  frivolous  petitions 
of  State  and  Federal  prisoners.  The  possibility  of  structuring  State 
processes  through  delay  and  repetitive  applications  for  Federal 
habeas  corpus  has  virtually  nullified  State  capital  punishment 

Title  VI  incorporates  a  variety  of  reforms  responding  to  these 
abuses.  It  would  establish  a  1-year  time  limit  on  habeas  corpus  ap- 
plications, normally  running  from  the  end  of  the  State  criminal 
process.  This  would  provide  a  means  for  controlling  the  abuses  of 
repetitive  filing,  and  the  filing  of  petitions  years,  or  even  decades, 
after  the  normal  conclusion  of  a  criminal  case. 

Title  VI  would  also  establish  a  general  rule  barring  claims  which 
were  not  raised  before  the  State  court  where  the  State  has  pro- 
vided an  opportunity  to  raise  such  claims  that  would  satisfy  the  re- 
quirements of  Federal  laws.  Under  this  rule,  a  claim  could  be 
raised  on  a  habeas  corpus  if  an  attorney's  failure  to  raise  it,  in 
State  proceedings,  amounted  to  constitutionally  ineffective  assist- 
ance of  counsel.  But  minor  oversights  and  errors  by  counsel,  which 
even  the  ablest  attorneys  will  sometimes  make,  would  not  be 
grounds  for  reopening  a  criminal  case  in  Federal  court  after  the 
State  process  is  completed. 

A  further  reform  of  title  VI  is  according  deference  in  habeas 
corpus  proceedings  to  the  result  of  full  and  fair  State  adjudications. 
The  requirement  of  a  full  and  fair  adjudication  would  generally  be 
satisfied  if  the  State  determination  of  a  petitioner's  claim  was  rea- 
sonable, and  was  arrived  at  by  procedures  consistent  with  due  proc- 

The  current  rules,  by  contrast,  mandate  redetermination  of  all 
claims,  regardless  of  how  often,  and  how  adequately  they  have 
been  considered  by  the  State  courts.  The  effect  of  the  reform 
should  be  a  relatively  quick  and  easy  decision  in  habeas  petitions 
of  most  claims  that  have  previously  been  decided  by  the  State 


Finally,  title  VI  would  make  comparable  reforms  in  the  collater- 
al remedies  for  Federal  prisoners,  and  affect  various  technical  im- 
provements in  habeas  corpus  procedures. 

The  Federal  surplus  property  amendments  in  title  IX  of  the  bill 
would  be  of  great  assistance  in  turning  over  Federal  property  to 
State  and  local  jurisdictions  for  use  as  correctional  facilities,  some- 
thing that  we  have  done,  to  the  extent  that  we  can,  laboring  under 
the  burdens  of  the  present  law,  and  have  actually  been  very  effec- 
tive in  assisting  many  of  the  States,  or  at  least  some  of  the  States, 
the  ones  that  have  participated  so  far,  and  quickly,  at  least  dealing 
with  the  overcrowding  in  State  prison  facilities. 

In  the  past  decade,  the  State  prison  population  has  almost  dou- 
bled, from  204,000  in  1973  to  over  400,000  today.  Because  prison 
construction  is  so  expensive,  ranging  from  $30,000  to  $90,000  per 
bed,  State  governments  are  severely  strained.  More  than  half  of 
our  State  correctional  systems  are  under  Federal  court  orders 
stemming  from  overcrowding. 

In  an  effort  to  assist  the  States  in  dealing  with  this  problem,  the 
Attorney  General  has  established  a  clearinghouse  to  facilitate  the 
identification  and  transfer  to  States  of  surplus  Federal  properties 
suitable  for  prison  use.  Four  States  have  acquired  property  under 
this  program. 

Under  current  law,  however,  States  must  either  lease  or  pur- 
chase the  property  at  its  fair  market  value.  This  is  a  financial 
burden  which  many  States  cannot  bear. 

Under  title  IX  of  the  President's  crime  bill,  surplus  Federal  prop- 
erty could  be  donated  to  the  States  at  no  cost. 

As  there  are  surplus  properties  available  which  could,  at  mini- 
mal cost,  be  converted  to  prison  use,  enactment  of  this  proposal 
would  provide  urgently  needed  relief  to  States,  and  reduce  the 
problem  of  prison  overcrowding. 

The  final  provision  that  I  would  like  to  touch  on,  and  then  turn 
it  over  to  Assistant  Attorney  General  Lowell  Jensen  to  offer  fur- 
ther comments  on,  is  the  sentencing  reform  proposals  in  the  bill. 

Criminal  sentences  are  imposed  at  the  end  of  a  process  that  is 
designed  to  assure  fairness  to  defendants  and  to  the  public.  Ideally, 
sentences  represent  society's  statement  of  the  relative  seriousness 
of  the  defendant's  criminal  conduct,  and  will  deter  criminal  con- 
duct by  others. 

Unfortunately,  despite  everyone's  best  efforts,  sentences  ulti- 
mately fail  to  achieve  these  goals.  This  is  true  in  large  measure  be- 
cause the  system  fails  not  only  to  provide  appropriate  sentences  in 
many  individual  cases,  but  even  fails  to  provide  a  mechanism  capa- 
ble of  consistently  achieving  such  results. 

Current  Federal  law  provides  a  Federal  judge  who  is  sentencing 
someone,  who  has  no  special  competence  in  knowing  what  sentence 
will  reflect  society's  values,  discretion  to  impose  a  sentence  pursu- 
ant to  numerous  sentencing  options,  with  almost  no  guidance  as  to 
how  to  choose  among  those  options. 

Federal  penal  statutes  specify  only  the  maximum  sentence  that 
may  be  imposed  for  a  particular  offense,  and  this  only  indicates  the 
congressional  view  of  the  appropriate  sentence  for  the  most  serious 
case  under  that  statute.  Federal  law  also  provides  various  sentenc- 
ing alternatives,  such  as  probation  and  restitution,  and  various  spe- 


cialized  sentencing  statutes,  such  as  those  available  for  youthful  of- 
fenders, or  drug  addicts. 

But  Federal  law  gives  absolutely  no  guidance  as  to  when  or  how 
these  statutes  should  be  used.  As  a  result,  judges  are  left  to  impose 
sentences  according  to  their  own  notions  of  the  purposes  for  sen- 
tencing. They  are  not  required  to  state  their  reasons  for  choosing  a 
particular  sentence,  and  many,  in  fact  most,  do  not.  Sentences  are 
reviewable  only  for  illegality,  or  for  constitutional  violation. 

A  sentence  that  is  substantially  out  of  proportion  to  those  in  sim- 
ilar cases  is  not  otherwise  subject  to  challenge.  It  is  unreviewable. 

Current  imprisonment  statutes  were  enacted  at  a  time  when  the 
criminal  justice  system  utilized  a  medical  model.  A  defendant  sen- 
tenced to  prison  was  sentenced  to  a  term  substantially  longer  than 
the  judge  thought  would  be  needed  to  rehabilitate  or  cure  the  de- 

Parole  authorities  would  periodically  review  the  defendant's 
case,  to  determine  whether  he  had  been  rehabilitated,  and  could  be 
released.  This  theory  ignores  the  fact  that  there  are  other  purposes 
of  prison  sentences,  such  as  just  punishment  and  deterrence  for 
which  definite  sentences  must  be  imposed. 

In  addition,  the  theory  has  proved  to  be  unsound  because  behav- 
ioral scientists  have  concluded,  in  recent  years,  that  there  is  no  re- 
liable means  of  inducing  rehabilitation,  and  no  way  to  tell  from  a 
prisoner's  behavior  in  prison,  or  before  a  parole  board,  whether  or 
when  he  has  become  rehabilitated.  Decisions  as  to  rehabilitation 
have  resulted  in  numerous  tragedies  all  throughout  this  country. 

Consequently,  the  basic  reasons  for  an  indeterminate  sentence, 
and  thus,  for  the  existence  of  parole  boards  has  disappeared.  The 
Federal  Parole  Commission  today  acknowledges  that  it  cannot  tell 
when  a  prisoner  has  become  rehabilitated.  It  now  sets  release  dates 
for  most  prisoners  under  its  own  guidelines  soon  after  they  begin 
their  prison  term,  and  based  entirely  on  information  known  at  the 
time  of  sentencing.  The  release  date  may  be  substantially  different 
from  the  prison  term,  and  may  be  set  to  achieve  entirely  different 
goals  from  those  of  the  sentencing  judge.  It  does  not,  however,  re- 
flect in  any  way  an  assessment  of  the  person's  behavior  in  prison, 
or  of  the  quality  or  level  of  the  person's  rehabilitation. 

It  is,  in  essence,  a  resentencing  of  the  person  who  has  been  sen- 
tenced by  the  judge  already,  and  often  in  a  way  that  conflicts  with 
what  the  judge  did  in  the  first  place. 

The  almost  inevitable  result  of  the  problems  of  current  law  is 
considerable  sentencing  disparity.  This  disparity  has  been  docu- 
mented in  numerous  studies,  including  a  recent  study  for  the  De- 
partment of  Justice,  in  which  208  Federal  judges  agreed,  in  only  3 
of  16  hypothetical  cases,  on  whether  to  sentence  a  defendant  to 
prison  at  all.  The  study  found  that  21  percent  of  the  variation  in 
sentences  was  due  to  the  tendencies  of  some  judges  to  sentence 
more  harshly,  or  more  leniently  than  others,  and  that  even  more 
variation  was  due  to  differences  in  the  weight  in  which  individual 
judges  gave  particular  offenses  or  offender  characteristics. 

In  the  last  decade  a  concensus  has  developed  among  those  of  dif- 
ferent political  views  that  the  current  Federal  sentencing  system  is 
riddled  with  serious  shortcomings.  More  recently,  substantial  sup- 
port has  developed  for  an  approach  along  the  lines  of  title  II  in  this 


proposed  bill,  a  system  that  couples  sentencing  guidelines,  and  pro- 
vides for  determinate  sentences.  This  title  is  substantially  identical 
to  the  legislation  approved  several  times  by  the  Senate  Judiciary 
Committee,  and  passed  by  the  Senate  most  recently  in  S.  2572,  in 
the  last  Congress. 

The  provisions  are  also  similar  to  the  Minnesota  system,  the  only 
operating  State  system  that  is  substantially  similar  to  the  proposal 
contained  in  title  II,  which  the  National  Academy  of  Sciences  has 
recently  reported  to  be  the  most  successful  sentencing  reform 

If  I  may,  Mr.  Chairman,  I  would  turn  it  over  now  to  Assistant 
Attorney  General  Jensen,  who  will  discuss  the  sentencing  proposal, 
or  continue  the  discussion  of  the  sentencing  proposal,  and  move  on 
to  some  of  the  other  provisions. 

The  Chairman.  Mr.  Jensen,  we  would  be  glad  to  hear  from  you. 


Mr.  Jensen.  Thank  you,  Mr.  Chairman  and  members  of  the  sub- 

I  would  like  to  follow  up  on  the  discussion  of  the  sentencing  in 
title  II,  to  describe  a  little  bit  just  exactly  what  title  II  would  sug- 
gest in  terms  of  revision  of  Federal  sentencing  laws. 

It  would,  for  the  first  time,  give  legislative  recognition  to  the  pur- 
poses of  sentencing,  including  just  punishment,  deterrence,  protec- 
tion of  the  public,  and  rehabilitation.  A  judge  would  impose  sen- 
tence after  considering  these  purposes,  and  sentencing  guidelines, 
promulgated  by  a  commission  in  the  judicial  branch  that  would 
recommend  an  appropriate  kind  of  range  of  sentence  for  each  com- 
bination of  offense  and  offender  characteristics.  The  judge  would 
impose  sentence  in  accordance  with  the  guidelines,  unless  he  found 
that  a  factor  that  should  affect  the  sentence  was  not  adequately 
considered  in  the  guidelines. 

If  the  judge  imposed  sentence  outside  the  guidelines,  he  would 
have  to  state  specific  reasons  for  doing  so,  A  sentence  above  the 
guidelines  would  be  subject  to  appellate  review  at  the  request  of 
the  defendant,  and  a  sentence  below  the  guidelines  would  be  sub- 
ject to  review  at  the  request  of  the  Government,  acting  on  behalf  of 
the  public. 

A  prison  term  imposed  by  the  judge  would  represent  the  actual 
time  to  be  served,  less  a  small  amount  of  credit  for  compliance 
with  prison  rules.  The  Parole  Commission  would  be  abolished,  and 
prison  sentences  imposed  by  judges  would  no  longer  be  artificially 
inflated,  because  of  the  parole  system. 

If  the  sentencing  judge  thought  that  a  defendant  would  need 
street  supervision  following  his  prison  term,  he  could  impose  a 
term  of  supervised  release  to  follow  the  prison  term. 

Title  II  provides  numerous  advantages  over  current  law.  The 
most  important  is  that  it  provides  a  sentencing  mechanism  that 
will  assure  fair  sentences,  and  the  appearance  of  fairness.  Sentenc- 
ing guidelines  will  assure  that  defendants  will  receive  sentences 
that  are  fair,  as  compared  to  sentences  for  all  other  offenders.  De- 
terminate sentencing  will  assure  that  everyone  will  know  at  the 


time  of  sentencing  exactly  what  the  sentence  is,  and  why  it  was  im- 

Finally,  appellate  review  of  sentences  will  assure  the  develop- 
ment of  a  balanced  body  of  case  law  concerning  the  appropriate- 
ness of  both  unusually  high  and  unusually  low  sentences. 

Let  me  turn  to  one  of  the  other  titles,  a  major  portion  of  the  leg- 
islation we  are  discussing,  and  that  has  to  do  with  the  exclusionary 

In  title  III  of  the  bill  we  set  out  a  proposed  modification  of  the 
fourth  amendment  exclusionary  rule,  to  restrain  it  to  its  proper 
rule,  which  is  precisely  that  of  deterring  unlawful  police  conduct. 

Our  proposal  is  identical  to  that  submitted  by  the  administration 
and  introduced  by  Chairman  Thurmond  as  S.  2231  in  the  97th  Con- 
gress. Our  proposal  is,  simply,  that  the  exclusionary  rule  would  not 
be  applied  in  cases  in  which  the  law  enforcement  officers  who  con- 
ducted the  search  acted  in  a  reasonable  good  faith  belief  that  their 
actions  were  lawful. 

When  first  imposed  by  the  Supreme  Court  in  1914,  the  exclusion- 
ary rule  was  justified  both  as  a  means  of  deterring  unlawful  police 
conduct  and  on  a  judicial  integrity  ground,  which  sought  to  prevent 
courts  from  being  accomplices  in  willful  constitutional  violations. 
Over  time,  it  has  become  clear  that  the  deterrence  rationale  is  the 
foremost  reason  behind  the  rule. 

There  are  any  number  of  cases  that  set  this  out.  They  start  with 
the  cases  that  dealt  with  the  retroactivity  of  the  rule  itself.  And  all 
those  cases  have  now  clearly  established  that  the  rule  will  be  in- 
voked to  protect  fourth  amendment  rights,  only  when  to  do  so 
would  effectively  deter  unlawful  conduct  by  police  or  by  law  en- 
forcement authorities. 

Although  the  Court  recognizes  deterrence  as  the  rule's  para- 
mount purpose,  it  has  not  limited  the  rule  only  to  those  situations 
in  which  the  law  enforcement  officer's  conduct  is  susceptible  to 
being  deterred.  For  example,  courts  continue  to  suppress  evidence 
seized  by  law  enforcement  officers  during  searches  conducted  pur- 
suant to  duly  authorized  warrants  which  have  been  obtained  in 
completely  good  faith  but  later  found  defective  by  an  appellate 

When  a  warrant  is  obtained  in  good  faith  from  one  court  but  is 
subsequently  ruled  defective  by  another  court,  there  is  a  disagree- 
ment between  judges — there  is  no  police  misconduct  involved.  The 
police  have  simply  carried  out  their  duties.  They  have  gone  to  the 
court  and  presented  their  evidence,  completely  with  full  disclosure. 
The  court  has  made  a  decision  that  probable  cause  exists  for  a  war- 

In  those  circumstances,  there  is  no  police  misconduct,  whatso- 
ever, and  the  exclusionary  rule,  when  it  is  applied  in  those  cases, 
simply  fails  to  comport  with  its  rationale. 

Moreover,  when  the  officers  carry  out  the  orders  of  the  court, 
once  a  warrant  is  issued,  suppression  of  evidence  in  such  an  in- 
stance does  not  serve  the  purpose  of  the  exclusionary  rule. 

In  fact,  it  only  serves  to  damage  both  a  community's  perception 
of  justice  and  the  morale  of  law  enforcement  officers  who  have  fol- 
lowed the  rules  only  to  have  the  evidence  suppressed  on  the  prem- 


ise  that  they  have  violated  the  Constitution.  Proper  police  conduct 
is  thereby  falsely  labeled  as  illegal. 

The  deterrent  purpose  of  the  exclusionary  rule  also  is  not  served 
when  courts  apply  the  rule  to  situations  where  the  appellate  court 
cases  are  not  at  all  clear,  where  the  law  is  thoroughly  confused,  or 
even  in  -situations  where  the  cases  are  in  flat  contradiction.  Police 
often  are  confronted  with  the  question  of  whether  to  conduct  a 
warrantless  search  in  the  field  when  the  circumstances  they  are 
facing  are  not  covered  by  existing  case  law. 

For  example,  we  could  consider  the  facts  in  two  recent  cases  de- 
cided by  the  Supreme  Court,  Robbins'  v.  California,  and  New  York 
V.  Belton.  Both  of  these  cases  were  decided  by  the  Court  on  the 
same  day  in  the  1981  term.  In  both  cases,  police  officers  lawfully 
stopped  a  car,  smelled  burnt  marihuana,  discovered  marihuana  in 
the  passenger  compartment  of  the  car,  and  lawfully  arrested  the 
occupants.  Thereafter,  in  Robbins  the  officer  found  two  packages 
wrapped  in  green  opaque  paper  in  the  recessed  rear  compartment 
of  the  car,  opened  them  without  a  warrant,  and  found  30  pounds  of 
marihuana.  In  Belton,  the  officer  found  a  jacket  in  the  passenger 
compartment,  unzipped  the  packet  without  a  warrant,  and  found  a 
quantity  of  cocaine. 

In  decisions  based  largely  on  cases  that  had  not  even  been  decid- 
ed at  the  time  of  the  two  searches  were  actually  conducted,  the 
Court  split  as  follows  in  now  considering  the  cases  that  have  come 
from  New  York  and  California:  three  Justices  of  the  Supreme 
Court  decided  that  both  searches  were  legal;  three  Justices  decided 
that  both  were  illegal;  and  three  Justices  decided  the  ultimate  deci- 
sion that  Robbins  was  illegal  and  Belton  was  legal. 

The  interesting  result  of  that  is  that  both  New  York  and  Califor- 
nia were  found  to  be  wrong.  They  were  both  reversed.  So  the  Su- 
preme Court,  on  the  basis  of  the  decision,  simply  decided  that  the 
cases  as  they  come  up  through  the  State  courts  have  been  decided 
once  again  by  the  judicial  disagreement  to  be  a  different  state  of 

Moreover,  the  Court  did  not  give  the  police  any  real  guidance  to 
understand  the  law  of  warrantless  searches  of  automobiles,  and 
less  than  a  year  later  the  issue  was  again  before  the  Court  in  the 
United  States  v.  Ross. 

In  that  case,  the  Court  reconsidered  the  holding  of  Robbins,  and 
it  was  repudiated.  So  what  we  have  was,  after  we  had  gone  through 
this,  we  now  have  a  state  of  law  that  was  known  but  we  had  gone 
through  a  process  where  Robbins'  and  Belton's  cases  had  been  af- 
fected by  a  state  of  law  which  was  unknown. 

It  was  probably  small  consolation  for  the  police  involved  in  the 
search  in  Robbins  to  know  that  their  view  of  the  law  in  this  area 
was  ultimately  upheld  by  the  Supreme  Court  in  another  case  since 
the  defendant  in  Robbins  went  free  because  the  evidence  was  ex- 
cluded. To  say  the  suppression  of  reliable,  trustworthy  evidence  in 
this  type  of  case  helps  to  deter  police  misconduct  is  absurd,  and  the 
acquittal  of  the  defendant  is  a  totally  unjustified  windfall. 

Our  proposal  in  title  III  setting  forth  a  reasonable,  good  faith  ex- 
ception to  the  exclusionary  rule  recognizes  that  conduct  undertak- 
en in  reasonable  good  faith  is  not  succeptible  of  being  deterred.  It 
is  based  on  the  en  banc  opinion  of  the  Fifth  Circuit  in   United 


States  V.  Williams,  which  adopted  a  reasonable  good  faith  excep- 
tion in  that  circuit  after  an  exhaustive  opinion  which  considered 
all  relevant  Supreme  Court  cases.  Such  legislation  was  recommend- 
ed by  the  Attorney  General's  Task  Force  on  Violent  Crime  after 
hearing  the  recommendations  of  legal  scholars  on  many  different 
points  of  view.  We  are  confident  it  is  constitutional. 

Moreover,  a  legislative  modification  of  the  rule  is  long  overdue, 
having  first  been  suggested  12  years  ago  by  the  Chief  Justice  in  his 
dissent  in  the  famous  Bivens  case. 

Let  me  turn  to  another  portion  of  the  legislation,  that  which 
deals  with  the  reinstitution  of  capital  punishment. 

The  establishment  of  constitutional  procedures  for  the  imposition 
of  capital  punishment  is  the  purpose  of  title  X  of  the  administra- 
tion's crime  bill.  For  more  than  a  decade,  Federal  statutes  author- 
izing the  death  penalty  for  offenses  of  homicide,  espionage,  and 
treason  have  been  unenforceable  because  they  fail  to  provide,  as  re- 
quired under  the  Supreme  Court's  landmark  decision  in  Furman  v. 
Georgia,  a  set  of  legislated  guidelines  to  narrow  the  sentencer's  dis- 
cretion in  determining  whether  the  death  penalty  is  justified  in  a 
particular  case.  In  a  series  of  decisions  after  Furman,  the  Court  has 
further  refined  the  constitutional  requisites  of  a  statute  author- 
izing imposition  of  the  death  sentence.  At  the  same  time,  however, 
the  Court  has  stressed  that  if  procedural  requirements  designed  to 
protect  against  arbitrainess  and  disproportionality  are  met,  capital 
punishment  is  a  legitimate,  constitutional  sanction  for  the  most 
grave  offenses. 

In  the  10  years  since  the  Furman  decision,  two-thirds  of  the 
States  have  enacted  laws  to  restore  the  death  penalty  as  an  availa- 
ble sanction  for  the  most  serious  crimes  committed  under  particu- 
larly reprehensible  circumstances,  but  the  Congress  has  failed  to 
enact  similar  legislation  to  reinstitute  capital  punishment  at  the 
Federal  level.  Of  course,  legislation  to  provide  constitutional  proce- 
dures for  imposition  of  the  death  penalty  has  been  considered  by 
the  Congress  on  several  occasions. 

In  the  last  Congress,  the  Judiciary  Committee  held  exhaustive 
hearings  on  capital  punishment  and  devoted  considerable  effort  to 
the  development  of  a  death  penalty  statute  that  would  comport 
with  the  decisions  of  the  Supreme  Court.  The  product  of  this  effort, 
S.  114,  is  the  basis  for  the  death  penalty  provisions  of  our  bill. 

Appearing  before  the  Judiciary  Committee  during  its  hearings  on 
S.  114  was  one  of  my  first  tasks  as  an  Assistant  Attorney  General. 
As  I  stated  in  my  testimony  at  that  time,  the  death  penalty  is  not  a 
pleasant  subject  for  either  a  legislator  or  an  official  charged  with 
enforcement  of  our  criminal  laws  to  contemplate.  But  the  fact  that 
the  death  penalty  is  an  unpleasant  and  controversial  issue  is  no 
justification  for  continuing  to  avoid  enactment  of  procedures  to 
permit  its  restoration,  for,  under  certain  circumstances,  it  is  a  war- 
ranted sanction  for  a  limited  number  of  Federal  offenses — offenses 
which  involve  the  brutal  taking  of  innocent  lives  or  which  threaten 
the  very  security  of  our  Nation. 

In  our  view,  the  death  penalty  is  warranted  for  two  principal 
reasons.  First,  while  studies  attempting  to  assess  the  deterrent 
effect  of  capital  punishment  have  reached  conflicting  results,  we 
believe  common  sense  supports  the  conclusion  that  the  death  pen- 


alty  can  operate  as  a  deterrent  for  certain  crimes  involving  preme- 
ditation and  calculation,  and  thus  it  will  save  the  lives  of  persons 
who  would  otherwise  become  the  permanent  and  irretrievable  vic- 
tims of  crime. 

Second,  society  does  have  a  right — and  the  Supreme  Court  has 
confirmed  that  right — to  exact  a  just  and  proportionate  punish- 
ment on  those  who  deliberately  flout  the  most  basic  requirements 
of  its  laws;  and  there  are  some  offenses  which  are  so  harmful  and 
so  reprehensible  that  no  other  penalty,  not  even  life  imprisonment 
without  the  possibility  of  parole,  would  represent  an  adequate  re- 
sponse to  the  defendant's  conduct. 

As  the  Supreme  Court  has  stressed  in  its  death  penalty  decisions, 
the  severity  of  the  sanction  requires  that  it  be  imposed  only  in  very 
limited  circumstances  and  pursuant  to  stringent  procedural  safe- 
guards. The  death  penalty  provisions  of  our  bill  meet  these  require- 
ments: the  death  penalty  may  be  imposed  only  pursuant  to  a  sepa- 
rate sentencing  hearing  and  the  Government  must  give  advance 
notice  to  the  defendant  of  its  intent  to  seek  the  death  penalty;  ag- 
gravating and  mitigating  factors  bearing  on  the  justifiability  of  the 
death  penalty  in  a  particular  case  are  specifically  enumerated,  but 
the  defendant  may  raise  any  additional  issue  in  mitigation;  the 
Government's  burden  of  proof  with  respect  to  aggravating  factors 
is  more  stringent  than  that  which  is  placed  on  the  defendant  in  his 
proof  of  mitigating  circumstances;  special  findings  and  jury  una- 
nimity are  required  at  all  stages,  special  jury  instructions  are  man- 
dated to  guard  against  the  influence  of  prejudice;  and  the  stand- 
ards and  procedures  for  appeal  of  a  death  sentence  are  specified. 

In  our  view,  these  procedures  for  determining  whether  the  sen- 
tence of  death  is  justified  in  a  particular  case  fully  comport  with 
the  constitutional  teachings  of  the  Supreme  Court  over  the  last 
decade.  We  believe  that  in  the  carefully  delineated  circumstances 
to  which  the  death  penalty  provisions  of  our  bill  would  apply,  the 
opportunity  for  imposition  of  capital  punishment  should  be  re- 
stored. A  criminal  justice  system  limited  to  lesser  sanctions  is  lack- 
ing in  adequate  deterrence  and  fails  to  meet  society's  need  to  exact 
a  just  and  proportionate  punishment  for  the  most  grave  and  repre- 
hensible of  crimes. 

Turning  to  another  portion  of  the  legislation,  title  VII.  This  deals 
with  an  area  of  amendments  to  drug  laws.  There  has  been  a  great 
deal  of  discussion,  activity,  the  Attorney  General  alluded  to  the  im- 
portance of  this  area,  and  there  are  a  number  of  issues  that  are 
appropriate  here.  They  deal  across  the  whole  range  of  sentencing. 
Assistant  Secretary  Walker  will  deal  with  forfeiture,  another  very 
important  area. 

This  particular  area  in  title  VII  deals  with  providing  a  more  ra- 
tionale penalty  structure  for  the  major  drug  trafficking  offenses. 
Trafficking  in  illicit  drugs  is  one  of  the  most  serious  crime  prob- 
lems facing  the  country,  yet  the  present  penalties  for  major  drug 
offenses  are  often  inconsistent  or  inadequate.  This  title  primarily 
focuses  on  three  major  problems  with  current  drug  penalties. 

First,  with  the  exception  of  offenses,  except  for  marihuana,  and 
with  that  as  an  exception,  the  severity  of  current  drug  penalties  is 
determined  exclusively  by  the  nature  of  the  controlled  substance 
involved.  While  it  is  appropriate  that  the  relative  dangerousness  of 


a  particular  drug  should  have  a  bearing  on  the  penalty  for  its  im- 
portation or  distribution,  another  important  factor  is  the  amount  of 
the  drug  involved.  This  bill  takes  that  factor  into  account  by  pro- 
viding more  severe  penalties  for  offenses  involving  larger  quanti- 
ties of  certain  drugs  than  for  offenses  involving  lesser  quantities. 

The  second  problem  addressed  by  this  title  is  the  current  fine 
levels  for  major  drug  offenses.  Drug  trafficking  is  incredibly,  enor- 
mously absurdly  profitable.  Yet  current  fine  levels  are,  in  relation 
to  the  illicit  profits  generated,  woefully  inadequate.  It  is  not  un- 
common for  a  major  drug  transaction  to  produce  profits  in  the  hun- 
dreds of  thousands  of  dollars.  However,  with  the  exception  of  the 
most  recently  enacted  penalty  for  distribution  of  large  amounts  of 
marihuana,  the  maximum  fine  that  may  be  imposed  is  $25,000. 
This  title  provides  more  realistic  fine  levels  that  can  serve  as  ap- 
propriate punishments  for,  and  deterrents  to,  these  tremendously 
lucrative  crimes. 

A  third  problem  addressed  by  this  title  is  the  disparate  sentenc- 
ing for  offenses  involving  schedule  I  and  II  substances;  schedule  I 
deals  with  narcotic  drugs,  opiates,  and  cocaine,  and  they  are  sub- 
ject to  greater  penalties  than  offenses  involving  schedule  II  nonnar- 
cotic substances.  This  penalty  structure  is  at  odds  with  the  fact 
that  title  II  controlled  substances  include  such  extremely  danger- 
ous drugs  as  PCP,  LSD,  methamphetamines,  methaqualone,  and 
Federal  prosecutions  involving  these  drugs  typically  involve  huge 
amounts  of  illicit  income  and  sophisticated  organizations. 

Title  VII  would  correct  these  penalty  problems  in  the  areas  of 
both  drug  trafficking  and  importation /exportation  offenses. 

Title  VII  also  contains  numerous  amendments  in  the  area  of  di- 
version control  aimed  at  enhancing  our  diversion  control  capabili- 
ties but,  where  appropriate,  relaxing  certain  restrictions.  For  exam- 
ple, the  bill  amends  the  Controlled  Substance  Act  to  establish  a 
new  emergency  authority  to  place  an  uncontrolled  substance  under 
temporary  controls  which  provide  for  registration,  recordkeeping, 
and  criminal  penalties  of  up  to  five  years.  This  would  permit  DEA 
to  deal  with  rapidly  developing  situations  in  which  a  new  or  uncon- 
trolled drug  suddenly  becomes  a  public  danger. 

Title  VII  also  amends  the  registration  procedures  of  current  law. 
For  example,  the  bill  would  greatly  alter  the  standards  required  for 
the  registration  of  practitioners  by  enabling  DEA  to  consider  rec- 
ommendations of  the  State  licensing  board,  special  limitations,  and 
applicants,  prior  conviction  record  and  other  related  matters. 

The  diversion  control  amendments  also  provide  special  grant  au- 
thority and  authorize  resources  for  the  expansion  of  DEA's  State 
assistance  program  to  help  State  and  local  governments  suppress 
the  diversion  of  controlled  substances.  DEA's  program  to  assist 
States  in  establishing  diversion  investigation  units  has  proven  suc- 
cessful; however,  because  of  lack  of  explicit  authority  and  neces- 
sary resources.  States  have  been  hindered  in  establishing  such  pro- 
grams. The  new  authority  will  respond  to  this  problem. 

We  turn  finally  to  a  portion  of  the  legislation,  title  VIII,  which 
deals  with  the  Justice  Assistance  Act.  This  is  an  integral  part  of 
our  comprehensive  crime  program,  and  it  is  a  proposal  to  provide 
assistance  to  State  and  local  law  enforcement. 


Although  there  is  much  to  be  done  to  strengthen  Federal  law  en- 
forcement, and  this  is  the  major  focus  of  the  administration's  bill, 
the  primary  responsibility  for  enforcement  of  the  criminal  laws 
and  for  crime  prevention  in  this  country  and  the  financial  burden 
that  goes  with  that  responsibility,  falls  on  State  and  local  govern- 
ments. Providing  local  law  enforcement  with  additional  resources, 
particularly  with  respect  to  the  areas  of  violent  crime,  repeat  of- 
fenders, victim  and  witness  assistance,  and  crime  prevention,  is  the 
purpose  of  the  Justice  Assistance  Act.  This  title  of  our  bill  is  the 
product  of  discussions  with  members  of  the  House  and  Senate  Judi- 
ciary Committees,  and  closely  parallels  similar  provisions  approved 
by  the  House  and  Senate  in  the  last  Congress. 

The  current  law's  program  for  providing  financial  assistance  to 
State  and  local  law  enforcement — LEAA — has  been  phased  out. 
The  history  of  LEAA,  however,  provides  some  important  lessons.  It 
shows,  for  example,  that  expenditures  of  money — $8  billion  over  12 
years — is  not  the  answer  to  the  crime  problem  and  that  a  program 
whose  priorities  are  unclear  and  constantly  shifting  results  in  a 
minimal  payoff.  On  the  other  hand,  we  have  also  learned  that  Fed- 
eral seed  money  for  carefully  selected  programs  does  work  and  that 
certain  of  these  projects  can  have  a  significant  impact  on  our  crimi- 
nal justice  system. 

Our  proposed  Justice  Assistance  Act  reflects  an  appreciation  of 
these  issues.  It  focuses  Federal  financial  assistance  on  a  selected 
group  of  particularly  important  criminal  justice  issues  where  the 
application  of  additional  funds  will  be  most  productive.  It  strips 
away  layers  of  bureaucratic  redtape  required  under  the  earlier  pro- 
gram and  consolidates  the  management  of  the  program  in  a  single 
unit  of  the  Department  of  Justice.  Moreover,  it  continues  the  pres- 
ently authorized  justice  research  and  statistical  programs  and  in- 
sures coordination  between  the  products  of  research  and  the  proj- 
ects implemented  under  the  financial  assistance  provisions. 

The  proposal  would  establish  within  the  Department  of  Justice 
an  Office  of  Justice  Assistance,  headed  by  an  Assistant  Attorney 
General.  Advising  the  Assistant  Attorney  General  would  be  a 
single  advisory  board,  replacing  two  current  advisory  groups. 
Within  the  Office  of  Justice  Assistance  would  be  three  separate 
units — the  existing  Bureau  of  Justice  Statistics  and  the  National 
Institute  of  Justice,  and  a  new  Bureau  of  Justice  Programs,  which 
would  administer  the  proposed  technical  and  financial  assistance 

Financial  assistance  to  local  law  enforcement  would  be  provided 
through  a  combination  of  block  and  discretionary  grant  funds.  The 
block  grant  funding  will  provide  each  State  with  an  allocation 
based  on  its  relative  population,  and  a  share  of  the  funds  are  to  be 
passed  on  to  local  governments.  There  is  a  matching  requirement 
for  the  Federal  funds,  and  Federal  assistance  for  individual  proj- 
ects would  be  limited  to  no  more  than  3  years. 

Moreover,  the  use  of  the  funds  is  limited  to  specific  types  of  proj- 
ects which  have  a  demonstrated  track  record  of  success.  The  other 
component  of  the  financial  assistance  package,  discretionary  funds, 
would  focus  on  training  and  technical  assistance,  multijurisdic- 
tional  and  national  programs,  and  demonstration  projects  to  test 
new  anticrime  ideas. 

25-694   0-84-3 


Also  included  in  title  VII  is  a  provision  which  would  permit 
emergency  law  enforcement  assistance.  Under  this  provision,  the 
Attorney  General  could,  pursuant  to  a  request  from  a  State  Gover- 
nor, designate  a  "law  enforcement  emergency  jurisdiction,"  when 
an  uncommon  situation,  such  as  the  massive  child  murder  investi- 
gations in  Atlanta,  develops  and  local  resources  are  not  adequate  to 
meet  the  emergency.  In  these  cases,  emergency  assistance  in  the 
form  of  equipment,  training,  intelligence  information,  and  techni- 
cal expertise,  as  well  as  emergency  funds,  can  be  provided  by  Fed- 
eral authorities. 

Finally,  this  portion  of  the  administration's  crime  bill  sets  forth 
certain  amendments  to  improve  the  current  public  safety  officers' 
benefit  program  and  the  prison  industries  certification  authority. 

As  Mr.  Giuliani  indicated  previously,  I  would  now  like  to,  Mr. 
Chairman,  turn  this  over  to  Assistant  Secretary  Walker  for  a  de- 
scription and  discussion  of  some  of  the  other  areas  of  the  title. 

Senator  Biden.  Mr.  Chairman,  may  I  ask  a  question? 

The  Chairman.  Senator  Biden. 

Senator  Biden.  Our  plate  is  being  filled  with  so  much  informa- 
tion here.  There  are  a  number  of  questions  I  have,  and  I  am  sure 
others  have.  Would  it  be  possible  for  us  to  take  15  minutes  here  to 
ask  questions  of  those  who  have  already  spoken,  before  we  go  on  to 
the  next  witness? 

Is  that  a  good  idea? 

The  Chairman.  Would  you  like  to  do  that? 

Senator  Specter.  I  would,  too.  Senator. 

The  Chairman.  All  right,  we  will  take  10  minutes  apiece  and  ask 
questions,  and  then  we  will  go  on  to  Mr.  Walker. 

Mr.  Giuliani,  the  bail  provisions  in  last  year's  bill  contained  a  re- 
buttal presumption  that  no  condition  of  release  would  insure  ap- 
pearance at  trial,  or  safety  of  the  community  with  respect  to  a  de- 
fendant charged  with  a  serious  narcotic  offense,  or  the  use  of  a  fire- 
arm to  commit  a  felony.  This  presumption  is  not  included  in  S.  829 
bail  procedures. 

Would  you  elaborate  on  the  reasons  for  not  including  this  provi- 
sion in  the  administration's  proposal? 

Mr.  Giuliani.  I  am  told  that  the  reasons  were  that  it  is  probably 
not  necessary,  since  a  prosecutor  would  be  able  to  make  those  argu- 
ments to  a  judge,  and  so  long  as  the  judge  has  discretion  and  the 
ability  to  deny  bail  in  situations  involving  drug  dealers,  that  is  suf- 
ficient, and  also  there  was  some  concern  that  there  might  be  an 
issue  of  unequal  treatment  raised  if  it  were  done  in  certain  catego- 
ries of  cases  or  in  another. 

Personally,  that  is  certainly  something  that  I  think  this  commit- 
tee should  consider  restoring  in  an  amendment. 

Senator  Biden.  It  is  obvious  that  you  are  leaving  the  Justice  De- 

Mr.  Giuliani.  That  is  right.  [Laughter.] 

The  Chairman.  Mr.  Giuliani,  with  respect  to  the  sentencing  pro- 
visions, you  note  that  Minnesota  has  adopted  a  sentencing  system 
similar  to  the  one  proposed  in  this  bill. 

Could  you  tell  us  how  well  it  is  working? 

Mr.  Giuliani.  Well,  Mr.  Chairman,  I  am  told,  and  the  only  study 
done  is  a  very  quick  and  preliminary  study  done  by  the  National 


Academy  of  Sciences,  that  they  believe  that  it  is  working  very,  very 
well,  and  that  it  has  not  led  to — one  of  the  criticisms  is  that  when 
you  go  to  determinative  sentencing,  all  of  a  sudden  the  sentences 
become  astronomically  much  higher  than  they  were  before,  and  in 
fact,  that  has  not  been  the  case  in  Minnesota.  The  sentences  have 
become  more  uniform,  but  not  outrageously  higher  or  lower,  and 
what  we  are  seeking,  as  you  know,  in  the  sentencing  reform,  is  not 
some  major  change  in  sentences  given  for  a  particular  crime,  but 
more  uniformity  in  the  way  Federal  judges  sentence  throughout. 

So  I  do  not  say  that  this  is  a  definitive  study.  I  believe  they  only 
studied  it  for  a  period  of  7  or  8  months.  But  to  the  extent  that 
there  are  any  conclusions  that  can  be  drawn,  they  are  all  very  posi- 

The  Chairman.  Mr.  Giuliani,  S.  829,  as  well  as  previous  sentenc- 
ing bills,  provides  for  a  system  of  guidelines  to  be  used  by  the  court 
in  setting  a  sentence,  with  appellate  review  of  a  lenient  sentence 
below  the  appropriate  guideline  by  the  Government.  Everyone 
seems  to  agree  that  the  defendant  should  be  able  to  appeal  his  sen- 
tence above  the  appropriate  guidelines,  while  at  least  some  oppose 
Government  appeal. 

How  important  is  it  to  the  operation  of  this  system  that  the  Gov- 
ernment be  permitted  to  appeal  the  sentence? 

Mr.  GiuuANi.  Mr.  Chairman,  I  believe  it  is  probably  the  single 
most  important  provision  in  the  sentencing  reform,  Government 
appeal  and  defendant  appeal  of  sentences,  because  it  is  the  only 
way  that  over  a  period  of  time  we  are  going  to  develop  a  body  of 
law  and  a  group  of  opinions  that  instruct  a  judge  on  how  to  exer- 
cise discretion. 

Sentencing  commissions  can  set  guidelines,  and  as  you  know,  Mr. 
Chairman,  it  will  fit  some  cases,  and  they  are  not  going  to  be  able 
to  anticipate  every  case. 

The  real  value  to  the  judicial  system  would  be  if  a  Federal  judge, 
at  the  time  of  sentence,  when  he  had  a  question  about  how  much 
he  should  weigh  one  factor  or  another,  had  a  body  of  law  that  he 
could  go  to  and  read  and  apply,  as  he  does  in  deciding  every  other 
question.  And  therefore,  I  think  that  appellate  review  of  sentences, 
both  the  Government  appeal  and  the  defendant  appeal,  is  really 
crucial  to  obtaining  the  kind  of  rough  uniformity  that  we  all  want. 

The  Chairman.  Mr.  Giuliani,  if  the  sentencing  system  proposed 
by  this  bill  is  adopted,  do  you  expect  a  drastic  increase  in  prison 
population,  and  if  so,  why? 

By  the  way,  I  note  the  presence  here  of  Mr.  Norman  Carlson,  the 
Director  of  the  Bureau  of  Prisons.  I  imagine  he  would  be  interested 
in  that,  too. 

Mr.  Giuliani.  Well,  I  will  tell  Norm  that  I  predict  that  there  will 
be  an  increase,  not  so  much  in  the  number  of  people  going  to 
prison,  but  possibly  to  some  extent  on  the  length  of  time  they 
spend  in  prison.  I  would  not  categorize  it  as  a  drastic  increase. 
There  has  been  an  increase  over  the  last  2  years  in  the  number  of 
people  going  to  prison,  and  in  our  budget  we  have  been  predicting 
an  increase,  based  upon  increased  enforcement,  and  also  the  possi- 
bility that  this  bill  will  become  law. 

But  I  do  not  think  it  will  be  a  drastic  increase,  and  it  would  be 
more  in  the  nature  of  people  would  be  spending  more  time  in 


prison,  as  opposed  to  necessarily  more  people  would  be  going  to 

The  Chairman.  There  probably  would  be  some  deterrent  effect  if 
this  package  is  passed,  would  there  not? 

In  other  words,  people  would  see  that  they  have  to  serve  their 
sentence,  and  they  may  be  more  careful  about  committing  crime, 
but  if  they  do  commit  it,  then  they  will  have  a  longer  time  to  serve. 

In  short,  is  that  it? 

Mr.  Giuliani.  That  is  absolutely  correct,  Mr.  Chairman. 

The  Chairman.  Now,  Mr.  Jensen,  could  I  ask  you  a  question  on 
the  exclusionary  rule? 

The  administration  proposal  would  eliminate  the  application  of 
the  exclusionary  rule  to  evidence  seized  by  a  police  officer  acting 
with  an  erroneous  but  reasonable  good  faith  belief  that  his  conduct 
was  not  in  violation  of  the  fourth  amendment. 

Why  does  the  administration  believe  this  approach  is  superior  to 
simply  abolishing  the  exclusionary  rule,  and  providing  appropriate 
civil  and  disciplinary  sanctions  to  deter  unlawful  police  conduct? 

Mr.  Jensen.  Senator  Thurmond,  as  I  indicated  before,  the  pro- 
posal that  we  have  in  the  bill  comes  directly  from  the  recommenda- 
tion of  the  Attorney  General's  Task  Force  on  Violent  Crime.  They 
considered  all  those  issues  as  to  the  most  appropriate  response.  It 
was  their  recommendation  that  this  is  the  way  in  which  we  should 
seek  legislation. 

Let  me  add  that  there  is  some  perception  that  this  is  the  realistic 
way  to  approach  the  possibility  of  a  legislative  modification  of  the 
exclusionary  rule.  In  addition  to  that,  it  is  premised  on  the  notion 
that  there  is  already  a  case.  United  States  v.  Williams,  which  I 
cited,  which  supports,  in  very  direct  fashion,  the  constitutionality 
of  that  kind  of  a  legislative  notion,  and  therefore  gives  it  very 
direct  constitutional  support. 

In  its  final  analysis  we  were  also  satisfied  that  the  basis  that  I 
spoke  to  in  terms  of  the  application  of  the  exclusionary  rule  would 
in  fact  be  eliminated  by  a  reasonable  good  faith  statement  of  the 

The  Chairman.  Mr.  Jensen,  S.  829,  as  well  as  my  bill  on  capital 
punishment,  provides  a  death  penalty  for  an  attempt  to  kill  the 
President.  So  we  will  have  it  in  this  record,  would  you  comment 
briefly  on  the  constitutionality  of  such  a  provision? 

Mr.  Jensen.  Yes,  sir.  The  constitutionality  issue  deals  with  the 
question  of  whether  or  not  a  death  penalty  would  be  constitutional- 
ly permissible  in  a  situation  where  there  was  no  actual  death  of  a 
victim.  That  has  been  raised  in  several  U.S.  Supreme  Court  cases. 
It  has  never  been  completely  resolved,  or  specifically  resolved. 

If  you  look  at  the  whole  history  of  the  death  penalty,  there  has 
always  been  a  death  penalty  in  the  Federal  law,  for  any  number  of 
cases  where  there  have  been  no  underlying  homicide.  Espionage 
and  treason  come  to  mind.  That  is  also  in  the  bill,  and  we  are  satis- 
fied that  that  is  a  constitutional  application. 

We  specifically  looked  at  the  issue  of  any  attempted  assassina- 
tion, as  to  whether  or  not  it  would  be,  in  the  opinion  of  the  Depart- 
ment of  Justice,  that  would  meet  constitutional  muster,  and  we  are 
satisfied  that  it  would  meet  constitutional  muster,  Mr.  Chairman. 

The  Chairman.  I  think  my  10  minutes  is  about  up  now. 


Senator  Biden. 

Senator  Biden.  Thank  you  very  much. 

Mr.  Giuliani,  you  have  not  been  releasing  any  reports  to  the 
GAO  lately,  have  you?  [Laughter.] 

Mr.  Giuliani.  No,  Senator. 

Senator  Biden.  Good.  There  is  one  coming  out.  I  wish  you  were 
going  to  be  here  when  it  is  released. 

Mr.  Giuliani,  I  wish  you  luck  in  your  new  position  as  U.S.  attor- 
ney for  the  Southern  District  of  New  York.  Actually,  you  have 
been  there  before,  have  you  not? 

Mr.  Giuliani.  Yes,  sir. 

Senator  Biden.  Going  back  home.  You  have  got  your  hands  full. 

I  might  say,  I  think  you  are  going  to  be  missed — your  outbursts 
against  me  will  not  be  missed,  but  you  will  be  missed. 

I  am  a  little  concerned  about  the  questions  relating  to  the  task 
forces,  because  I  viewed  you  as  one  of  the  linchpins  in  seeing  that 
it  worked.  I  realize  that  any  good  program  can  overcome  the  loss  of 
good  people,  but  I  do  want  to  discuss  for  the  record  what  will 
happen  in  your  going,  and  I  understand  your  assistant  is  also  going 
to  be  going,  but  I  will  get  to  that  in  a  minute. 

If  I  may,  with  regard  to  the  exclusionary  rule.  Am  I  to  under- 
stand that  under  the  proposed  exception,  evidence  would  not  be  ex- 
cluded if  a  law  enforcement  official  was  unaware  of  the  current 
fourth  amendment  law  that  applied  to  a  particular  situation? 

Mr.  Jensen.  Excuse  me,  Senator,  that  is  really  not  correct.  I 
think  that  is  an  important  point,  is  that  it  has  been  asserted,  on 
some  occasions,  that  this  would  place  a  premium  on  police  igno- 
rance, and  that  is  a  very  difficult  problem,  and  one  which  we 
would  not  want  to  see  in  the  legislative  structure,  or  legal  struc- 
ture at  all.  It  does  not  do  that. 

The  good  faith  test  is  both  a  subjective  and  an  objective  test.  It 
requires  a  subjective  belief  on  the  part  of  the  officer  that  it  is  un- 
lawful, but  if  the  officer  is  operating  the  situation  where  he  is 
simply  unaware  of  the  rules  that  apply  to  the  search,  then  it  does 
not  meet  the  objective  standards  of  the  good  faith  exception.  So  it 
has  to  be  a  reasonable  good  faith  belief. 

It  is  not  reasonable  if  it  does  not  meet  an  objective  test.  Then  it 
would  not  fall  within  the  exception. 

Senator  Biden.  It  is  not  reasonable  if  he  does  not  understand  the 
fourth  amendment. 

Mr.  Jensen.  No,  no.  The  test  of  whether  or  not  it  is  reasonable  is 
an  objective  test.  It  does  not  depend  on  his  objective  feeling,  what- 
soever. It  is  a  test  the  court  imposes  on  the  search  itself.  The  offi- 
cer explains  the  search,  what  he  did,  what  his  subjective  belief  was, 
and  it  is  tested  then  by  the  law. 

If  the  law  is  clear  that  his  conduct  was  in  violation  of  the  exist- 
ing standards,  then  that  is  a  bad  search,  regardless  of  his  state  of 

If  on  the  other  hand  you  are  in  a  situation  where  there  is  no  law 
for  him  to  follow,  then  it  is  objectively  valid  that  his  subjective 
belief  could  be  acted  upon,  then  reasonable  good  faith  would  permit 
the  search  to  be  all  right. 

Senator  Biden.  Well,  as  a  practical  matter,  the  subjective  belief 
really  is  not  going  to  impact  at  all  upon  the  court's  judgment,  be- 


cause  the  court  applies  what  they  beUeve  to  be  an  objective  stand- 
ard as  to  what  is  necessary  to  constitute  protection,  does  it  not? 

Mr.  Jensen.  That  is  what  we  do  in  any  number  of  situations, 
where  courts  look  to  what  is  the  objective  state  of  the  law.  We  do 
that  in  all  kinds  of  areas  of  the  law.  This  simply  says  that  there  is 
no  reason  why  we  should  not  do  it  in  the  fourth  amendment  also, 
and  if  we  find  a  situation  where  the  officer  has  in  fact  acted  in 
such  a  way  that  it  comports  with  the  fourth  amendment  in  an  ob- 
jective fashion,  there  is  no  reason  to  suppress  the  evidence. 

Senator  Biden.  Without  pursuing  that  in  the  little  time  that  I 
have,  let  me  ask  you  about  the  Gates  case  now.  It  is  before  the  Su- 
preme Court,  and  involves  a  good  faith  exception  to  the  exclusion- 
ary rule. 

In  view  of  the  potential  constitutional  issues  raised  by  statutorily 
modifying  that  rule,  would  it  not  be  wise  to  postpone  legislative 
action  until  the  Court  judgment? 

After  all,  the  Court  may  in  fact  rule  in  a  way  that  solves  the 

Mr.  Jensen.  It  is  potentially  possible  in  the  Gates  decision  that 
the  Court  would  so  rule.  However,  it  is  not  necessary — it  is  not  a 
necessary  decision  that  will  either  have  a  decision  by  the  Court 
that  there  will  be  a  good  faith  exception,  or  that  there  will  not  be. 

The  Gates  case  involves  a  search  by  search  warrant.  It  involves  a 
case  that  in  effect  I  alluded  to  as  to  the  kind  of  problem  situation 
where  the  officers  went  to  a  magistrate,  they  presented  all  the  evi- 
dence they  had,  they  made  a  complete  disclosure  to  the  Court,  and 
a  search  warrant  was  issued.  Pursuant  to  that  search  warrant  they 
then  went  and  completed  a  successful  search. 

A  later  Court  decision  said,  well,  we  do  not  agree  with  the  first 
judge.  We  think  that  there  was  not  any  probable  cause.  So  if  you 
look  at  the  case,  it  is  on  appeal,  on  a  number  of  levels.  One  is 
whether  or  not  the  decision  of  probable  cause  is  correct.  You  could 
have  a  decision  by  the  Court  that  only  deals  with  probable  cause. 

Senator  Biden.  I  agree  with  that.  I  acknowledge  that  there  is  a 
prospect  that  the  Court  will  not  solve  the  issue  in  its  ruling  in 
Gates,  but  there  is  also  a  possibility  that  it  will.  It  seems  to  me  that 
when  we  can  avoid  raising  constitutional  questions  that  the  courts 
themselves  may  resolve,  it  might  be  wiser  to  wait.  We  are  not  talk- 
ing about  an  indefinite  wait  here,  we  are  talking  about  knowing 
the  result  this  year. 

Would  you  object  to  that? 

Mr.  Jensen.  No,  I  would  not  have  any  objection  if  the  Court  were 
to  rule  in  Illinois  v.  Gates,  in  a  fashion  that  would  comport  with 
what  we  are  suggesting,  certainly. 

Senator  Biden.  No,  I  mean  would  you  object  to  us  waiting. 

Mr.  Jensen.  No,  I  think  the  time  factor  actually  comes  about  in 
such  a  fashion  that  we  are  asking  consideration  of  this  bill,  we 
have  done  that  all  the  way  through,  as  a  part  of  the  crime  package. 
We  think  that  it  is  appropriate  for  a  statement  by  the  legislature, 
and  in  due  course  it  may  very  well  be  that  the  Gates  decision  is 
rendered  while  that  consideration  is  on. 

I  think  that  in  the  normal  course  one  would  expect  the  Gates  de- 
cision will  be  within  another  month  or  so,  so  that  I  think  we  will 
have  a  time  factor  that  overlaps. 


Senator  Biden.  In  the  habeas  corpus  provisions,  the  phrase,  "full 
and  fair  adjudication"  is  not  defined  in  the  bill.  Proponents  of  the 
bill  have  indicated  the  phrase  is  meant  to  be  interpretted  in  terms 
of  reasonableness. 

How  do  you  think  the  phrase  should  be  defined,  and  do  you 
think  it  should  be  defined  in  the  statute  itself? 

Mr.  Giuliani.  Well,  cases  have  defined  it  already  to  the  extent 
that  courts  deal  with  determining  whether  there  has  been  a  com- 
plete hearing  in  the  State  proceeding.  It  is  intended,  the  purpose  of 
it  is  intended  to  not  relitigate  in  the  Federal  court  something  that 
has  been  fully  and  effectively  dealt  with  in  the  State  courts. 

I  would  have  no  objection  to  a  definition.  I  do  not  really  believe 
one  is  necessary,  and  it  is  something  that  is  going  to  have  to  be 
worked  out  by  courts  in  interpreting  the  statute  afterward.  But  I 
certainly  would  have  no  objection  to  either  our  trying  to  develop  a 
proposed  further  definition  of  that,  or  if  the  committee 

Senator  Biden.  What  about  the  situation  where  a  Federal  judge 
found  the  State  adjudication  to  be  reasonable  in  a  technical  legal 
sense,  yet  believed  that  the  State  decision  was  substantively  incor- 
rect? What  happens  in  a  case  like  that? 

Mr.  Giuliani.  Where  he  believes  that  there  has  been  a  full  and 

Senator  Biden.  Where  he  believes  there  has  been  a  full  adjudica- 
tion, and  that  the  adjudication  was  reasonable  in  a  technical  legal 
sense,  but  he  believes  that  the  State  decision  was  in  fact  incorrect. 

Mr.  Giuliani.  I  see.  Senator,  I  think  that  would  really  depend  on 
the  kind  of  question  that  was  involved.  In  one  case,  if  it  was  a  full 
hearing,  but  it  was  not  in  the  view  of  this  particular  judge  com- 
plete enough,  or  a  perfect  hearing,  that  should  not  be  grounds  for 
reopening  a  criminal  proceeding,  because  this  particular  Federal 
judge  would  have  preferred  to  have  seen  more  witnesses  or  more 
evidence,  although  it  was  a  fair  and  reasonable  proceeding. 

However,  if  he  disagrees  as  to  the  conclusion  that  a  constitution- 
al right  was  violated,  then  that  is  something  that  he  would  have  to 
consider,  and  he  would  grant,  not  so  much  another  hearing,  but 
whatever  additional  fact  finding  was  necessary  to  come  to  a  conclu- 
sion about  it.  It  would  really  depend  on  the  nature  of  the  question 
that  was  involved. 

In  some  cases  I  can  see  it  leading  to  not  reopening  the  State  pro- 
ceedings, and  in  others,  it  might  be  necessary  to  reopen  it. 

Senator  Biden.  In  the  interest  of  time,  Mr.  Chairman,  I  have  sev- 
eral more  questions  on  habeas  corpus  and  the  exclusionary  rule, 
which  I  would  like  to  submit  in  writing,  if  I  could. 

The  Chairman.  Without  objection. 

[The  following  was  received  for  the  record:] 


Response  of  the  Department  of  Justice  to 
Questions  Proposed  by  Senator  Biden  Title  VI  of  S.  829 
(Habeas  Corpus  Reform) 

The  questions  proposed  by  Senator  Biden  on  Title  VI  of 
S.  829  are  in  four  parts.   The  first  three  parts  are  concerned 
respectively  with  the  proposed  standard  of  review  in  habeas 
corpus  proceedings,  the  standard  governing  excuse  of  procedural 
defaults,  and  the  proposed  time  limitation  rules.   The  fourth 
part  has  no  title,  but  appears  to  be  concerned  primarily  with  the 
work  involved  in  handling  habeas  corpus  cases. 


Part  I  poses  three  questions  relating  to  the  proposed 
standard  of  review  (the  "full  and  fair"  standard)  in  Title  VI  of 
S.  829.   The  first  question  is  as  follows: 

Won't  federal  courts  still  have  to  look  into 
state  court  proceedings  to  determine  if  the 
claim  was  "fully  and  fairly  adjudicated"?   In 
other  words,  would  not  this  bill  merely  change 
the  standard  of  review  without  actually  af- 
fecting the  level  of  federal  intervention? 

Response;  Assuming  satisfaction  of  the  other  requirements  for 
seeking  habeas  corpus  set  out  in  Title  VI,  examination  of  the 
state  proceeding  would  be  required  to  the  extent  necessary  to 
determine  compliance  with  the  standard  of  "full  and  fair"  adjud- 
ication of  the  petitioner's  claims.   In  comparison  with  the  cur- 
rent review  standards,  however,  the  inquiry  would  be  easier,  less 
intrusive  and  disparaging,  and  less  likely  to  result  in  protracted 
proceedings  or  the  invalidation  of  a  state  conviction. 

In  practical  terms,  the  present  rules  produce  results 
that  border  on  the  absurd,  requiring  reversal  of  judgments  many 
years  after  the  normal  conclusion  of  state  proceedings  on  grounds 
that  the  habeas  court  may  regard  as  no  more  than  reasonable  diffe- 
rences of  opinion  concerning  close  or  unsettled  questions  in  the 
interpretation  or  application  of  federal  law  on  which  the  federal 
courts  themselves  may  well  disagree.   In  addition  to  enhancing 
the  finality  of  state  criminal  judgments  and  avoiding  the  burden 
on  the  state  of  re-trying  the  petitioner  which  may  result  when  a 
writ  is  presently  granted  in  such  a  case,  the  proposed  reform  is 
likely  to  make  it  possible  to  decide  cases  more  easily  and  with 
less  extensive  litigation,  whether  or  not  the  petitioner  would 
ultimately  obtain  relief  under  the  current  rules.   A  good 
illustration  was  provided  by  the  Chief  Justice  of  Iowa  in  his 
testimony  on  the  proposals: 

Explore  with  me  for  a  moment  the  anatomy 
of  a  1975  Iowa  murder  trial.  State  v.  Moore. 
Moore,  who  assaulted  and  injured  a  jailer  at 
a  recess,  in  the  course  of  trial  badgered  a 
witness,  used  vulgar  language,  and  persisted 
in  profane  and  disrespectful  statements  to 
the  court.   After  calling  another  recess  and 
subsequently  warning  him,  trial  court  ulti- 
mately had  Moore  removed  from  the  courtroom 
during  twenty-five  minutes  of  an  expert's 
testimony.   In  a  1979  decision,  the  Iowa 
Supreme  Court  ruled  Moore  had  waived  his 
sixth  amendment  right  to  confront  the  adverse 


witness  and  upheld  his  conviction.   Our 
opinion  quoted  the  relevant  portion  of  the 
transcript  and  applied  as  controlling  the 
Supreme  Court's  standards  laid  down  in 
Illinois  V.  Allen.   In  1980  a  federal  trial 
judge,  ruling  on  Moore's  application  for  writ 
of  habeas  corpus,  set  out  the  same  portion  of 
the  transcript,  found  Illinois  v.  Allen  to  be 
controlling,  but  issued  the  writ.   In  1981, 
following  the  State's  appeal,  the  Eighth  Cir- 
cuit, again  quoting  the  then-familiar  portion 
of  the  transcript  and  for  the  third  time 
applying  Illinois  v.  Allen  standards,  agreed 
with  the  Iowa  Supreme  Court  and  reversed  the 
federal  district  court. 

Thus  Moore  was  permitted  to  collaterally 
attack  his  conviction  in  two  federal  courts 
even  though  the  identical  issue  was  fairly 
and  fully  considered  and  decided  in  his  state 
court  direct  appeal.   This  process  injected 
over  two  years  of  uncertainty  into  his  case 
after  his  state  appeal  was  concluded,  cost 
Iowa  substantial  resources  to  defend  the 
judgment  it  had  secured  in  one  state  court 
and  retained  in  another,  and  risked  tensions 
between  state  and  federal  courts  in  Iowa. 

No  one  suggests  federal  oversight  of 
state  decisions  involving  federal  constitu- 
tional rights  should  be  eliminated.   Adoption 
of  [the  reform  proposals],  however,  would 
avoid  many  unfortunate  and  wasteful  proceedings. 
For  example,  proposed  new  subsection  (d)  to 
section  2254  of  title  28  provides  ...  [for 
deference  to  full  and  fair  state  adjudi- 
cations] ....  Such  a  provision,  promptly 
applied  by  the  federal  district  judge  in  the 
Iowa  case  just  discussed,  would  have  termi- 
nated the  Moore  litigation  in  the  federal 
courts.  \_/ 

Further  economies  would  result  from  the  creation  of  a 
uniform  standard  applicable  to  both  factual  and  non-factual 
issues.   The  current  rules  can  require  difficult,  if  not  arbi- 
trary, decisions  as  to  whether  a  particular  state  court  deter- 
mination is  purely  one  of  fact  or  reflects  an  application  of  law 
to  fact.   This  occurs  because  the  rule  governing  re-adjudication 
of  factual  questions  (deference  allowed  if  a  number  of  poorly 
defined  conditions  are  met)  differs  from  that  governing  "re-adju- 
dication of  mixed  questions  of  law  and  fact  (re-adjudication 
uniformly  mandated) .   Since  the  "full  and  fair"  standard  would 
apply  the  same  criterion  of  "reasonableness"  to  review  of  both 
factual  and  non-factual  determinations,  such  hairsplitting  dis- 
tinctions would  no  longer  be  required.  2_/ 

-  The  Habeas  Corpus  Reform  Act  of  1982:   Hearing  on  S. 

2216  Before  the  Senate  Comm.  on  the  Judiciary,  97th  Cong., 
2d  Sess.  232-34  (1982)  [hereafter  cited  as  "Hearing"]. 

-^    See  128  Cong.  Rec.  S11856  (daily  ed.  Sept.  21,  1982) 
(statement  of  Senator  Thurmond  concerning  S.  2838) 
[hereafter  cited  as  "Sponsor's  Statement"]. 


Finally,  it  should  be  noted  that  the  reform  offers  other 
types  of  benefits,  in  addition  to  the  improvements  that  can  be 
expected  in  litigational  economy  and  finality  of  judgments.   These 
include  fostering  state  responsibility  in  the  enforcement  of 
federal  rights  and  according  more  appropriate  recognition  to  the 
dignity  and  independent  stature  of  the  state  courts.   Justice 
O'Connor  has  stated: 

If  our  nation's  bifurcated  judicial  sys- 
tem is  to  be  retained,  as  I  am  sure  it  will 
be,  it  is  clear  that  we  should  strive  to  make 
both  the  federal  and  the  state  systems  strong, 
independent,  and  viable.   State  courts  will 
undoubtedly  continue  in  the  future  to  litigate 
federal  constitutional  questions.   State 
judges  in  assuming  office  take  an  oath  to 
support  the  federal  as  well  as  the  state  con- 
stitution.  State  judges  do  in  fact  rise  to 
the  occasion  when  given  the  responsibility 
and  opportunity  to  do  so.   It  is  a  step  in 
the  right  direction  to  defer  to  the  state 
courts  and  give  finality  to  their  judgments 
on  federal  constitutional  questions  when  a 

full  and  fair  adjudication  has  been  given  in 
the  state  court.  3^/ 

The  second  question  in  Part  I  is  as  follows: 

Is  it  not  likely  that  there  will  have  to  be 
extensive  litigation  in  individual  cases  as 
to  what  exactly  is  meant  by  a  "full  and  fair" 
interpretation  of  Constitutional  law?   For 
example,  would  it  be  "fair"  for  a  state  court 
to  base  its  decision  on  an  unappealed  district 
court  case  if  several  districts  have  decided 
a  case  differently? 

Response;  Experience  with  existing  standards  of  review  of  a 
comparable  nature  indicates  that  no  unusual  amount  of  litigation 
will  result.   A  state  adjudication  would  normally  be  "full  and 
fair"  in  the  intended  sense  if  the  resulting  factual  and  non- 
factual  determinations  were  reasonable  and  were  arrived  at  by  a 
process  consistent  with  due  process.   Examples  of  limited  stan- 
dards of  review  applicable  to  legal  as  well  as  factual  determi- 
nations appear  in  other  contexts  in  federal  law.   For  example, 
a  federal  appellate  court  will  not  consider  a  claim  of  trial 
error  to  which  no  objection  was  made  at  trial  unless  it  consti- 
tutes "plain  error."   This  limiting  standard  of  review  extends  to 
pure  questions  of  law,  such  as  the  formulation  of  jury  instruc- 
tions.  4/ 

^'        O'Connor,  Trends  in  the  Relationship  Between  the 

Federal  and  State  Courts  from  the  P^^^P^^^^^^  "^..f  _^^^j^l) 
Court  Judge,  22  William  &  Mary  L.  Rev.  BUi,  m't-oiS  (1981) 

-'        See  Sponsor's  Statement,  supra  note  2,  at  S11856. 


A  second  analogy  is  provided  by  the  standard  for  judi- 
cial review  of  the  constitutionality  of  state  executive  action  in 
suits  for  damages  under  42  U.S.C.  §  1983.   In  such  suits  state 
executive  officials  are  generally  given  a  "good  faith"  defense  or 
iminunity,  under  which  the  official  incurs  no  liability  if  he  rea- 
sonably believed  that  his  actions  were  lawful.   Hence,  the  dispo- 
sition depends  not  on  whether  the  official  was  correct  in  his 
view  of  federal  law  in  the  reviewing  court's  estimation,  but  on 
whether  the  official's  view  of  federal  law  and  its  implications 
under  the  circumstances  was  reasonable.  5^/   While  all  standards 
of  review  occasionally  give  rise  to  interpretive  litigation,  ex- 
perience does  not  show  that  limited  standards  of  this  sort  are 
more  troublesome  than  other  types  of  standards. 

The  question  also  contains  a  more  specific  inquiry  which 
asks,  in  substance,  whether  a  state  court  interpretation  of  federal 
law  would  automatically  be  reasonable  in  the  sense  of  the  "full 
and  fair"  standard  if  it  was  consistent  with  the  view  of  a  single 
district  judge.   This  question  could  seldom  arise  as  a  practical 
matter  since  (i)  non-factual  issues  which  arise  in  habeas  corpus 
litigation  are  usually  questions  of  application  of  law  to  fact 
rather  than  pure  questions  of  law,  and  (ii)  the  positions  of  the 
state  courts  on  unsettled  questions  of  federal  law  usually  fall 
within  the  range  of  options  presented  in  the  decisions  of  the 
federal  courts  of  appeals.   For  the  few  cases  in  which  this 
question  might  arise,  the  answer  is  obviously  no.   District  judges 
vary  greatly  in  ability  and  propensities,  and  will  occasionally 
take  positions  that  are  simply  unreasonable  in  light  of  Supreme 
Court  precedent  or  constitutional  history.   Since  there  is  nothing 
in  the  statement  of  the  standard  or  in  its  underlying  policies  or 
legislative  history  to  support  a  conclusive  presumption  of  rea- 
sonableness for  the  views  of  district  judges,  unsupported  by 
endorsement  at  the  level  of  the  federal  courts  of  appeals,  it  is 
difficult  to  see  hov7  that  question  could  become  a  subject  of 

The  third  question  in  Part  I  is: 

Proponents  of  the  bill  have  stated  the  "full  and 
fair"  adjudication  is  to  be  measured  by  a  standard 
of  "reasonableness."   Do  you  agree?   Do  you  think 
a  definition  should  be  set  forth  in  the  statute 

Response;  The  intended  interpretation  of  the  "full  and  fair" 
standard  has  been  maintained  consistently  in  the  legislative  his- 
tory of  the  proposals.   The  essential  requirements  are  that  the 
state  determination  be  reasonable  and  that  it  be  arrived  at  in  a 
manner  consistent  with  applicable'  federal  procedural  requirements, 
including  due  process.   Appropriate  allowances  would  also  be  made 
for  re-adjudication  in  cases  of  subsequent  discovery  of  new  evi- 
dence and  subsequent  changes  of  law.  6/ 

We  have  stated  that  we  would  have  no  objection  to 
codification  of  the  intended  interpretation  in  the  bill.   Sui- 
table language  for  that  purpose  appears  in  the  hearing  record  on 
S.  2216  of  the  97th  Congress.  7/ 

-^    See  id. 


See  Sponsor's  Statement,  supra  note  2,  at  S11855-57; 
Hearing,  supra  note  1,  at  33-34;  id.  at  93-98. 

See  Hearing,  supra  note  1,  at  33-34. 



The  questions  in  Part  II  relate  to  the  proposed  codi- 
fication of  the  "cause  and  prejudice"  standard.   The  first 
question  is  as  follows: 

Is  it  necessary  to  codify  the  cause  and  preju- 
dice rules  established  by  the  Supreme  Court? 

Response;  "Necessity"  is  a  matter  of  degree,  but  it  is  certainly 
desirable  to  do  so.   The  Supreme  Court  has  not  provided  answers 
to  the  most  important  questions  concerning  the  meaning  of  "cause" 
in  the  five  years  since  the  standard  was  initially  adopted.   In 
particular,  the  circumstances  in  which  attorney  error  constitutes 
"cause"  to  excuse  a  procedural  default  remain  uncertain.   This 
has  resulted  in  a  large  volume  of  litigation  in  the  lower  courts, 
an  abundance  of  obscure  and  conflicting  interpretations,  and 
inconsistent  treatment  of  similar  cases.   If  a  clear,  general 
standard  can  be  achieved  through  legislation  the  benefits  of  doing 
so  are  apparent. 

The  second  question  in  Part  II  is  as  follows: 

Last  year  the  Supreme  Court  emphasized  the 
need  for  flexibility  in  determining  "cause" 
and  "prejudice".   In  the  case  of  Engle  v. 
Isaac  the  Court  stated:  "The  terms  'cause' 
and  'actual  prejudice'  are  not  rigid  concepts. 
They  take  their  meaning  from  principles  of 
comity  and  finality  discussed  above.   In 
appropriate  circumstances  they  must  yield  to 
the  imperative  of  a  fundamentally  unjust  incar- 
ceration [citation]."   Won't  codification  of 
the  Supreme  Court's  rules  remove  the  judicial 
flexibility  necessary  to  consider  individual 

Response;  The  rules  proposed  in  Title  VI  are  in  no  way  rigid  or 
inflexible.   They  have  been  carefully  designed  so  as  to  strike  an 
appropriate  balance  between  the  need  for  flexibility  and  the  need 
for  consistency  and  reasonably  definite  standards. 

The  question  may  reflect  a  misunderstanding  of  the 
Supreme  Court's  views  on  this  issue  which  has  been  earnestly 
promoted  in  the  testimony  of  the  American  Civil  Liberties  Union 
on  the  reform  proposals.  £/   The  tenor  of  this  misunderstanding 

is  that  the  Court  believes  that  no  definite  rules  governing  the 
"cause  and  prejudice"  inquiry  can  be  stated  and  that  the  ultimate 
decision  concerning  the  excuse  of  a  default  must  be  left  to  in- 
dividual judges'  subjective  sense  as  to  what  is  just  in  parti- 
cular cases. 


See  Statement  of  the  American  Civil  Liberties  Union  on 
S.  829  Before  the  Senate  Comm.  on  the  Judiciary,  at  24-25 
(May  18,  1983) . 


This  is  clearly  not  the  view  of  the  Supreme  Court.   In 
Engle  v.  Isaac,  9^/   for  example,  the  Court  laid  down  two  catego- 
rical rules  partially  defining  the  "cause"  inquiry:   (i)  the  per- 
ceived futility  of  raising  a  claim  in  state  proceedings,  because 
the  state  has  consistently  followed  a  contrary  rule,  is  not  "cause" 
to  excuse  a  procedural  default,  and  (ii)  the  fact  that  the  support 
for  a  claim  rests  in  part  on  decisions  rendered  after  a  default 
is  not  "cause"  unless  at  the  time  of  the  default  the  defendants 
"lacked  the  tools  to  construct  their  constitutional  claim."  10/ 
There  is,  in  fact,  nothing  in  the  passage  quoted  in  the  question 
which  conflicts  with  the  establishment  of  such  rules.   The  quoted 
passage  only  states  that  the  "cause  and  prejudice"  standard  does 
not  bar  raising  in  habeas  corpus  proceedings  every  claim  defaulted 
on  in  state  proceedings,  but  allows  claims  to  be  raised  in  appro- 
priate circumstances,  notwithstanding  a  default,  in  order  to  avoid 
injustice.   The  codification  proposed  in  Title  VI  is  fully  con- 
sistent with  this  point. 

The  third  and  final  question  concerning  the  "cause  and 
prejudice"  standard  is  as  follows: 

Should  the  "cause"  and  "prejudice"  provision 
be  amended  to  include  a  "safety  valve"  pro- 
vision such  as  an  exception  for  cases  in  which 
strict  application  of  the  statute  would  result 
in  manifest  injustice? 

Response;  This  has  already  been  partially  answered  in  the  response 
to  the   precediag  question.   Qualifying  the  cause  and  prejudice 
standard  with  such  an  exception  would  produce  an  authorization 
for  excusing  procedural  defaults  broader  than  that  of  current 
law.   It  would,  for  example,  enable  district  judges  to  override 
the  rule  established  by  the  Supreme  Court  in  Engle  v.  Isaac  that 
the  alleged  futility  of  raising  a  claim  is  not  "cause'  in  cases 
in  which  they  believed  that  complying  with  the  rule  would  result 
in  manifest  injustice.  11/ 

It  is  also  dubious  that  a  standard  so  qualified  would 
have  much  meaning  or  effect.   This  point  is  discussed  below  in 
connection  with  the  corresponding  question  on  the  time  limitation 


The  opening  statement  of  Part  III  notes  that  the  reform 
proposals  would  create  a  general  one  year  limitation  period  for 
habeas  corpus  and  a  corresponding  two-year  period  for  federal 
prisoners'  collateral  attacks.   It  goes  on  to  state  that  claims 
are  now  dismissed  "only  when  the  prosecution  can  show  it  has  been 
prejudiced  by  delay." 


456  U.S.  107  (1982) 

— ''   See  id.  at  130-34 


The  rule  stated  in  Engle  v.  Isaac  would,  of  course, 

apply  under  the  formulation  of  Title  VI,  which  does  not 

include  the  supposed  futility  of  raising  a  claim  among  the 
grounds  for  a  finding  of  "cause." 


These  statements  are  misleading.   Rule  9(a)  of  the 
habeas  corpus  procedural  rules  j^/  states  that  a  petition  may  be 
dismissed  if  the  state  has  been  prejudiced  in  its  ability  to 
respond,  unless  the  petition  is  based  on  grounds  which  could  not 
reasonably  have  been  discovered  prior  to  the  prejudicial  occur- 
rences.  As  the  language  of  the  Rule  suggests,  dismissal  under 
the  Rule  is  a  matter  of  discretion,  and  a  judge  may  entertain  a 
petition  notwithstanding  the  existence  of  prejudice  to  the  state 
when  he  feels  it  is  "in  the  interest  of  justice"  to  do  so.  13/ 
For  this  reason  and  others.  Rule  9(a)  has  not  been  a  meaningful 
check  on  belated  petitions.  14/ 

It  may  also  be  noted  that  no  other  limitation  on  the 
review  or  re-opening  of  criminal  judgments  in  the  federal  courts 
depends  on  a  showing  that  the  state  has  been  prejudiced  by  a  de- 
fendant's delay.   The  rules  proposed  in  Title  VI  are,  in  fact, 
quite  generous  in  comparison  with  other  federal  limitation  rules. 
The  proposed  habeas  corpus  limitation  would  be  a  one  year  period, 
normally  running  from  exhaustion  of  state  remedies.   The  starting 
point  of  the  limitation  period  would  be  deferred  in  appropriate 
cases,  including  cases  in  which  the  right  asserted  was  initially 
recognized  at  a  later  point  by  the  Supreme  Court  and  cases  in 
which  the  factual  basis  of  the  claim  could  not  reasonably  be  dis- 
covered till  a  later  point.   The  corresponding  two  year  time  limit 
for  federal  prisoners,  normally  running  from  finality  of  judgment, 
would  be  subject  to  the  same  exceptions. 

By  contrast,  under  existing  rules  state  prisoners  seekini 
direct  review  in  the  Supreme  Court  must  apply  within  90  days, 
subject  to  a  possible  60  day  extension,  with  no  extensions  or 
exceptions  allowed  beyond  that.  15^/   As  a  second  illustration, 
federal  prisoners  alleging  discovery  of  proof  of  their  innocence 
after  trial  must  move  for  a  new  trial  within  two  years  of  finality 
of  judgment.   No  extensions  or  exceptions  are  recognized  to  that 
period.  16/ 

— ^   See  28  U.S.C.  foil.  §  2254. 

A  substantially  identical  rule  9(a)  appears  in  the 
procedural  rules  governing  collateral  attacks  by  federal 
prisoners.   See  28  U.S.C.  foil.  §  2255. 

— ''   See  Advisory  Committee  Note  to  Rule  9(a),  28  U.S.C. 



foil.  §  2254. 

See,  e.g. ,  Spalding  v.  Aiken,  No.  82-665  (Supreme  Court 
April  18,  1983)  (district  judge  attempting  to  dismiss 
petition  under  Rule  9(a)  twice  reversed  on  appeal,  where 
triple-murderer  filed  petition  fourteen  years  after 
conviction  asserting  claims  previously  raised  and  rejected 
in  state  appeal) . 

See  Sup.  Ct.  R.  11,  22, 

— ^   See  Fed.  R.  Crim.  P.  33, 


Following  the  introductory  remarks.  Part  II  poses  four 
specific  questions.   The  first  is  as  follows: 

In  your  opinion  how  much  abuse  occurs  in  cur- 
rent law?   How  many  prisoners  purposely  delay 
the  presentation  of  their  claims  in  the  hope 
that  the  passage  of  time  will  undermine  the 
prosecution's  ability  to  dispute  their  claims 
in  court? 

Response;  In  capital  cases,  deliberate  delay  in  filing  is  the 
normal  practice.   This  practice,  together  with  repetitive  filing, 
has  effectively  nullified  the  capital  punishment  legislation  of 
the  states.  17/ 

With  respect  to  non-capital  cases,  the  question  appears 
to  confuse  the  question  of  abuse  with  the  question  of  deliberate 
delay.   If,  for  example,  a  single  prisoner  files  dozens  of 
petitions,  that  constitutes  abuse  on  any  reasonable  understanding 
of  the  term,  whether  or  not  the  prisoner  was  consciously  aware  of 
potential  claims  at  an  earlier  point  but  for  some  reason  withheld 
them  until  later  filings.  18^/      Needless  to  say,  the  imposition  of 
other  time  limits  in  criminal  procedure  1_9/  does  not  depend  on 
the  assumption  that  defendants  deliberately  delay  the  assertion 
of  potential  claims.   The  propriety  and  desirability  of  a  time 
limit  for  collateral  remedies  is  dependent  to  no  greater  degree 
on  such  an  assumption. 

The  second  question  in  Part  III  is  as  follows: 

What  percentage  of  petitions  filed  by  prisoners 
in  your  state  occur  within  that  time  period 
(and  therefore  would  not  be  affected  by  the 

Response:  This  question  is  apparently  addressed  to  state  officials 
and  is  not  apposite  to  the  Department  of  Justice. 

The  third  question  in  Part  III  is: 

Will  the  time  limitations  give  prisoners  an 
adequate  opportunity  to  research  and  present 
their  habeas  petitions? 

— '   See  Statement  of  Justice  Lewis  F.  Powell  Before  the 

Eleventh  Circuit  Conference  in  Savannah,  Georgia,  May  8-10, 
1983,  at  9-14;  Attorney  General  William  French  Smith, 
"Proposals  for  Habeas  Corpus  Reform"  in  P.  McGuigan  &  R. 
Rader,  eds..  Criminal  Justice  Reform,  at  145-46  (Free 
Congress  Research  and  Education  Foundation  1983)  . 

ii/   See  Statement  of  Justice  Lewis  F.  Powell  Before  the 

A~B  A  Division  of  Judicial  Administration,  San  Francisco, 
c;?lf;rnil'  Aug.  9,  1982,  at  9  n.lO  (footnote) (30  petitions 
by  single  prisoner) . 

—^      See  text  accompanying  notes  15-16  supra. 


Response:  The  proposed  time  limitation  rules  allow  ample  time  for 
the  preparation  and  presentation  of  claims.   The  usual  starting 
point  for  the  limitation  period  for  habeas  corpus  petitions  would 
be  exhaustion  of  state  remedies.   Exhaustion  is  normally  accom- 
plished by  presenting  a  claim  initially  to  a  state  trial  court, 
and  from  there  taking  it  up  on  review  to  the  highest  court  of  the 
state.   When  a  prisoner  has  already  presented  his  claims  in  state 
proceedings  at  the  trial  and  appellate  level,  it  is  very  reason- 
able to  require  that  he  re-present  the  same  claims  to  a  federal 
habeas  court  within  a  year  thereafter. 

The  proposed  period  of  two  years  from  finality  for  fe- 
deral prisoners  is  also  fully  adequate.   As  noted  earlier,  the 
basic  period  is  the  same  as  that  for  new-trial  motions  based  on 
newly  discovered  evidence  under  Criminal  Procedure  Rule  33.   The 
proposed  limitation  rule  for  federal  prisoners'  collateral  attacks 
is,  moreover,  subject  to  a  number  of  exceptions  favorable  to  tne 
prisoner  which  do  not  appear  in  the  Rule  33  remedy.  20/ 

The  final  question  in  Part  III  is: 

Should  the  statute  of  limitations  include  a 
"safety  valve"  provision,  such  as  an  exception 
for  cases  in  which  strict  application  of  the 
statute  would  result  in  "manifest  injustice"? 

Response:  An  amendment  of  this  sort  is  inconsistent  with  the  pur- 
pose of  the  reform  and  would  undermine  its  effect.   It  bears 
emphasizing  once  again  that  the  proposed  limitation  rules  are 
already  more  forgiving  of  delay  than  comparable  time  limits  in 
other  areas  of  criminal  procedure;  other,  stricter  time  limits 
are  subject  to  no  "manifest  injustice"  exception.  21/ 

The  basic  problem  of  the  current  system  is  the  absence 
of  any  rule  that  provides  meaningful  assurance  of  an  end  to  liti- 
gation.  A  standardless  "manifest  injustice"  exception,  leaving 
the  applicability  of  the  time  limitation  to  the  subjective  sense 
of  individual  judges,  would  suffer  from  the  same  shortcoming  as 
the  essentially  standardless  "laches"  doctrine  of  Habeas  Corpus 
Rule  9(a) .  22/ 

Specific  problems  that  would  arise  can  readily  be 
imagined.   One  may  ask,  for  example,  whether  conviction  of  a 
defendant  whose  counsel  is  incompetent  constitutes  a  "manifest 
injustice."   If  a  petitioner's  contention  that  his  counsel  was 
incompetent  were  sufficient  to  put  the  habeas  court  to  inquiry 
and  to  require  response  by  the  state,  then  a  limitation  rule 
would  have  little  meaning.   Claims  of  incompetent  counsel  are 
already  the  most  common  type  of  allegation  in  habeas  corpus  peti- 
tions, 23^/  and  other  kinds  of  claims  can  be  effectively  recast  as 
counsel  incompetence  claims  by  alleging  that  counsel's  failure  to 
raise  them  made  his  assistance  constitutionally  ineffective. 

The  example  of  incompetence-of-counsel  claims  is  merely 
illustrative;  similar  questions  would  arise  with  respect  to  many 
other  types  of  claims.   For  example,  it  would  presumably  be  argued 
that  the  "manifest  injustice"  exception  is  brought  into  play  by 


—  See  text  accompanying  note  16  supra. 


—  See  text  accompanying  notes  15-16  supra. 


—  See  text  accompanying  notes  12-14  supra. 

23  / 

—  See  P.  Robinson,  An  Empirical  Study  of  Federal  Habeas 

Corpus  Review  of  State  Court  Judgments  4(a),  12  (Federal 
Justice  Research  Program  1979) . 


such  allegations  in  a  petition  as  denial  of  counsel,  coerced  con- 
fession, knowing  prosecutorial  use  of  false  evidence,  prosecu- 
torial withholding  of  exculpatory  evidence,  judge  and  jury  bias, 
violation  of  plea  bargains,  and  insufficiency  of  the  evidence  to 
support  a  conviction.   To  an  unpredictable  extent  individual 
judges  would  agree  and  entertain  petitions  notwithstanding  the 
expiration  of  the  time  limitation  period. 


Part  IV  poses  the  following  question: 

According  to  the  Administrative  Office  of  the 
U.S.  Courts,  nearly  97%  of  all  state  habeas 
petitions  are  dismissed  pretrial.   Doesn't 
this  suggest  that  the  courts  are  successfully 
selecting  and  processing  meritorious  cases? 
Is  it  responsible  or  fair  to  limit  all 
prisoners'  access  to  the  courts  at  the  risk 
of  the  3%  or  so  who  may  be  wrongly  imprisoned? 

Response;  As  the  question  notes,  the  proportion  of  habeas  corpus 
cases  in  which  evidentiary  hearings  ("trials")  are  held  is  small. 
This  is  because  the  habeas  corpus  jurisdiction  of  the  district 
courts  is  quasi-appellate  in  character,  usually  involving  a  deci- 
sion on  the  state  record  together  with  written  submissions  by  the 
state  attorney  general's  office.   Hence,  concluding  that  no  undue 
burden  results  from  habeas  corpus  cases  because  evidentiary 
hearings  are  uncommon  is  much  like  concluding  that  the  federal 
courts  of  appeals  do  no  work  because  the  number  of  trials  they 
conduct  is  zero.   The  low  incidence  of  evidentiary  hearings  says 
nothing  about  whether  the  courts  are  "successfully  selecting  and 
processing  meritorious  cases."   Rather,  it  reflects  the  fact  that 
the  state  record  is  adequate  for  purposes  of  the  review  in  most 
instances.  24/ 

The  inference  suggested  in  the  question  that  3%  of 
prisoners  are  "wrongly  imprisoned"  because  evidentiary  hearings 
are  held  in  about  3%  of  habeas  corpus  cases  is  a  complete  non 
sequitur.   The  occurrence  of  an  evidentiary  hearing  has  no  parti- 
cular relationship  to  the  validity  or  invalidity  of  the  peti- 
tioner's claims  or  to  the  likelihood  that  he  has  been  wrongly 

The  work  involved  in  processing  habeas  corpus  cases  is, 
for  the  most  part,  the  type  of  work  characteristic  of  appellate 
proceedings.   In  connection  with  a  typical  petition,  the  state  is 
required  to  transmit  records  and  to  respond  to  the  legal  and 
factual  contentions  raised  by  the  petitioner.   The  district  judge 
must  review  the  record  to  the  extent  necessary  and  re-determine 
every  claim  that  is  properly  presented,  working  from  the  eviden- 
tiary basis  set  out  in  the  record  together  with  the  submissions 
and  arguments  of  the  parties.   Frequently  the  district  court's 
decision  is  appealed,  resulting  in  additional  work  for  judges, 
state  officials  and  defense  counsel  at  the  level  of  the  federal 
courts  of  appeals.   Since  a  prisoner  is  required  to  exhaust  state 
remedies  before  seeking  federal  habeas  corpus,  the  lure  of  an 
additional  level  of  review  in  the  federal  courts  results  in 
increased  recourse  to  state  remedies.  2^/   The  easy  availability 
of  federal  habeas  corpus  accordingly  increases  the  workload  of 
the  state  courts  as  well  as  the  federal  courts. 


For  criteria  affecting  the  holding  of  evidentiary  hearings 
under  current  law,  see  28  U.S.C.  $  2254(d);  Townsend  v.  Sain, 
372  U.S.  293,  312-ll~Tl963) . 

The  workload  question  is  discussed  in  greater  detail  in 
Hearing,  supra  note  1,  at  42-44. 

25-694  0-84-4 


Responses  to  Senator  Biden's  Questions  regarding  Exclusionary  Rule  Reform; 
Question    No.    1.       "What    is   your    view    if   proposals    to 
allow  a    civil    damage   action   against    the   United   States    if    the 
Exclusionary   Rule    is    limited? 

-  Are    not    juries   unlikely    to   rule    against   a 
guilty   defendant    even    if    his   Fourth  Amendment    rights 
were   clearly    violated? 

-  If    this   Committee  were    to   authorize    civil 
damage    suits    against    the   government    for   violations 
of    Fourth  Amendment    rights,    shouldn't   we    also   allow 
the    award   of    attorneys    fees?      Should  punitive 
damages    be   authorized    in   addition    to   actual    damages 
to   deter   future   constitutional   violations?" 
Answers ;      The    administration   opposes   jury    trials    in 

civil    actions    against    the   United   States.      Juries   may    indeed 
be    tempted    to    find    against    a    criminal    defendant   because    of 
the    type    of    person   he    is    rather   than    follow   the    law   as    provided 
by    the   Court    through    instructions.       In    a   similar   vein,    juries 
may   be   expected  to   be    inclined   to   emotionally   skew  a    decision 
in   favor   of    a   single   party   plaintiff   against   a   deep   pocket 
defendant   such   as    the   United   States.      In   the   thirty-five 
years    since    the  United   States   waived    its   sovereign    immunity 
with   enactment    of    the   Federal   Tort   Claims   Act,    jury   trials 
have    not   been   authorized    against   the   United   States.      There 
has    been   no   showing    that    bench    trials   work    to   the    detriment 
of    either   party   under   the   Federal   Tort   Claims   Act.      The 
primary   reason    for    providing    bench   or   non-jury    trials    is    the 
belief    that    the    government   will    be   unfairly   exposed   to    dis- 
proportionately   high    damage    awards    and   may    unfairly    be   the 
subject    of    bias    in    liability    findings.      To  put    it    another 
way,    it    is    not    difficult    to    imagine   a    juror   thinking    to 
himself,    "What    is    a    million   dollars    to   the   United   States?" 
On    the    other    side    of    the   coin,    it    is    not    difficult    to    imagine 
a    juror    finding    against    the    claim   of    a    political    activist 


plaintiff  or  a  convicted  criminal  plaintiff  despite  the 
fact  that  that  person  was  the  victim  of  a  constitutional 
infraction.   In  either  case,  the  consequences  would  be  unjust 
and  unfortunate.   In  addition,  there  would  be  increased 
delays  as  a  result  of  jury  proceedings  and  increased  expense 
for  all  parties  including  plaintiffs.   For  all  of  these 
reasons  we  think  it  would  be  unwise  to  single  out  constitutional 
torts  for  jury  trials  under  the  Federal  Tort  Claims  Act. 

We  oppose  any  provision  which  would  award  additional 
attorneys  fees  to  prevailing  plaintiffs  against  the  government 
in  a  tort  case.   First,  it  is  not  necessary  given  the  current 
scheme  of  the  Federal  Tort  Claims  Act  which  provides  that  up 
to  25%  of  any  judgment  may  be  paid  to  the  plaintiff's  attorney. 
This  is  the  manner  in  which  reimbursement  of  attorneys  has 
been  handled  under  the  law  of  tort  in  the  United  States  for 
over  200  years.   We  fail  to  see  why  a  plaintiff  who  happens 
to  be  suing  the  government  should  be  treated  any  differently 
from  any  other  tort  plaintiff.   It  is  certain  that  the 
availability  of  attorneys  fees  would  invite  artful  pleading 
by  plaintiff's  counsel  and  increased  litigation  over  the 
propriety  of  the  pleadings  as  well  as  the  amount  of  any  fees. 
Providing  fees  in  constitutional  tort  cases  would  also  serve 
as  a  strong  incentive  for  the  courts  to  find  constitutional 
implications  in  what  would  otherwise  be  properly  classified 
as  common  law  torts.   Finally,  awarding  attorneys  fees  to 
plaintiffs  would  suffer  from  a  lack  of  even-handedness. 
Experience  has  shown  that  a  large  proportion  of  constitutional 
tort  cases  are  frivolous  and  malicious.   The  possibility  of 
an  award  of  attorneys  fees  will  encourage  such  actions  parti- 
cularly if  the  United  States  cannot  seek  such  an  award  when 
it  prevails.   Accordingly,  we  would  oppose  any  new  attorneys 
fees  provision  under  the  Federal  Tort  Claims  Act. 


Punitive  damages  should  not  be  authorized  against  the 
United  States.   The  primary  object  of  tort  law  is  to  attempt 
to  compensate  victims  for  losses  they  have  suffered.   By 
permitting  punitive  damages  to  be  awarded  against  the  United 
States  plaintiffs  who  have  suffered  little  or  no  compensable 
injury  could  receive  a  windfall  out  of  all  proportion  to 
their  injury.   This  would  seem  to  be  illogical  and  unfair  to 
the  taxpayers.   In  addition,  we  note  that  the  concept  of 
punitive  damages  is  one  of  punishment  as  opposed  to  compen- 
sation.  Legal  authorities  are  overwhelmingly  of  the  view 
that  such  punishment  is  inappropriate  against  a  governmental 
entity  or  institution  because  the  punishment  is  borne  by  the 
innocent  citizens  who  comprise  the  body  politic.   Moreover, 
in  order  to  adequately  punish  the  federal  government,  the 
damage  award  would  have  to  be  huge  and  grossly  disproportionate 
to  any  injuries  suffered.   In  a  fairly  recent  case  the  Supreme 
Court  rejected  the  concept  of  punitive  damages  against  a 
municiple  government.   Fact  Concerts  Inc.  v.  The  City  of 
Newport,  453  U.S.  247  (1981).   We  think  this  decision  to  be 
correct  and  that  an  opposite  policy  would  be  extremely  unwise 
and  unprecedented. 



2.   It  has  been  argued  that  deterrence  of  police  misconduct 
is  an  important  function  of  the  exclusionary  rule. 

Q.   Doesn't  a  "reasonable  good  faith"  exception  as  proposed 
by  the  administration  reward  ignorance  of  the  Constitution? 

A.   A  reasonable  good  faith  rule  requires  more  than  an 
assessment  of  the  subjective  state  of  mind  of  the  officer  who 
conducted  the  search.   Such  a  rule  would  also  require  a  showing 
that  the  officer's  good  faith  belief  in  the  lawfulness  of  the 
search  is  grounded  in  objective  reasonableness.   The  reasonable 
good  faith  exception  to  the  exclusionary  rule  was  adopted  by  the 
Fifth  Circuit  en  banc  in  United  States  v.  Williams,  622  F.2d  830 
(5th  Cir.  1980).   The  Williams  opinion  was  based  as  an  exhaustive 
analysis  of  all  relevant  Supreme  Court  cases  and  noted  explicitly 
that  "the  belief  [in  the  lawfulness  of  the  search]  in  addition  to 
being  held  in  subjective  good  faith,  must  be  grounded  in  an 
objective  reasonableness.   It  must  therefore  be  based  upon 
articulable  premises  sufficient  to  cause  a  reasonable,  and 
reasonably  trained,  officer  to  believe  that  he  was  acting 
lawfully."  622  F.  2d  830,  8U1  fn.  4a.   This  objective  standard  by 
which  the  reasonableness  of  the  officer's  belief  would  be  tested 
would  ensure  that  ignorance  of  the  constitution  and  the  relevant 
cases  construing  the  Fourth  Amendment  would  in  no  way  be  rewarded 
under  the  exception  to  the  exclusionary  rule  which  the  Department 
supports.   As  stated  by  Justice  White  in  his  concuring  opinion  in 

Illinois  V.  Gates,  U.S.  ,  No.  8I-M30,  June  8,  1983,  slip 

op.  p.  16,  fn.  15:   "Grounding  the  modification  [of  the  exclu- 
sionary rule  on  reasonable  good  faith]  ...  retains  the  value  of 
the  exclusionary  rule  as  an  incentive  for  the  law  enforcement 
profession  as  a  whole  to  conduct  themselves  in  accord  with  the 
Fourth  Amendment." 

Q.   What  disciplinary  procedures  if  any,  exist  to  respond 
to  official  misconduct  in  violation  of  the  Fourth  Amendment. 
How  often  have  they  been  employed? 


A.   DOJ  order  1752. 1A,  dated  April  27,  1981  and  presently 
in  effect  lists  several  "offenses"   by  Departmfent  of  Justice 
employees  that  could  result  in  disciplinary  action.   We  would  be 
happy  to  make  the  entire  order  which  describes  the  disciplinary 
process  available  to  the  Committee  at  its  request.   Three 
"offenses"  listed  in  the  order  are  concerned  with  improper 
searches  and  seizures.   A  page  from  DOJ  order  1752.1  A 
summarizing  these  "offenses"  and  setting  forth  possible 
punishments  is  attached  for  your  information.   Since  the  DOJ 
order  went  into  effect,  no  employees  have  been  punished  for  an 
improper  search  or  seizure. 

DOJ  order  1752. 1A  applies  to  all  components  of  the  Depart- 
ment of  Justice  except  the  FBI  because  traditionally  the  FBI  has 
been  permitted  to  promulgate  and  employ  its  own  disciplinary 
rules  and  regulations.   However,  the  FBI  considers  that  negli- 
gent, reckless,  or  intentional  violations  of  constitutional 
rights  are  actionable  offenses  under  its  own  Schedule  of 
Disciplinary  Offenses  and  Penalties.   An  illegal  search  would  be 
covered  by  a  category  in  the  schedule  proscribing  criminal, 
dishonest,  immoral,  infamous,  or  notoriously  disgraceful  conduct. 
The  punishment  may  extend  to  removal  in  an  appropriate  case,  even 
for  a  first  offense. 

Q.  What  civil  tort  remedies  now  exist  for  victims  of 
illegal  searches?  How  often  are  they  used  and  what  is  the 

A.   From  the  adoption  of  the  Fourth  Amendment  in  1791  until 
the  Supreme  Court's  decision  in  Bivens  v.  Six  Unknown  Named 
Agents  of  the  Federal  Bureau  of  Narcotics,  M03  U.S.  388  (1971), 
a  person  whose  rights  had  been  violated  by  a  federal  officer 
conducting  a  search  without  a  warrant,  without  probable  cause,  or 
in  an  otherwise  improper  manner  could  not  recover  compensation  in 
federal  court  from  either  the  government  or  the  officer.   The 
government  was  shielded  by  sovereign  immunity  and  the  absence  of 
an  act  of  Congress  providing  a  cause  of  action  was  thought  to 


shield  the  officer  from  personal  liability.   However,  in  Bivens 
the  Supreme  court  held  that  federal  courts  could  award  the  victim 
of  an  illegal  search  damages  recoverable  from  the  officer 
notwithstanding  the  absence  of  a  Congressional  act  creating  such 
a  cause  of  action. 

Since  1971,  there  have  been  an  estimated  10,000  Bivens 
suits,  which  are  also  known  as  constitutional  tort  actions  since 
their  primary  characteristic  is  an  allegation  of  a  personal 
cause  of  action  for  a  tort  arising  directly  out  of  a  provision  of 
the  Constitution  such  as  the  Fourth  Amendment.   The  lower  federal 
courts  have  extended  the  Bivens  tort  action  to  claims  arising  out 
of  virtually  the  entire  bill  of  rights  and  records  are  not 
maintained  by  the  Department  on  the  number  of  Bivens  suits  that 
allege  Fourth  Amendment  violations.   Fewer  than  20  Bivens  cases 
have  resulted  in  judgements  against  the  federal  officer  defend- 
ants and  in  over  half  of  these  the  officers  have  successfully 
appealed  or  prevailed  on  post-trial  motions,  so  in  only  a  very 
few  cases  has  an  officer  had  to  pay  damages.   Approximately  2M00 
Bivens  cases  are  presently  pending. 

Q.   In  your  opinion,  how  much  is  "reasonable  good  faith" 
likely  to  differ  between  individual  police  officers  and  between 
different  areas  of  the  country? 

A.   Initially,  it  should  be  noted  that  the  reasonable  good 
faith  exception  to  the  exclusionary  rule  would  apply  only  in 
federal  courts  under  the  Department's  proposed  legislation. 
Normally,  federal  officers  such  as  FBI  or  DEA  agents  conduct 
searches  for  evidence  presented  in  federal  court.   We  would 
expect  the  "reasonable"  portion  of  the  reasonable  good  faith 
exception  —  the  portion  which  is  concerned  with  the  officer's 
knowledge  of  the  law  of  search  and  seizure  —  to  be  uniform  for 
all  full  time  federal  officers  throughout  the  United  States. 

To  the  extent  that  state  and  local  officers  conduct 
searches,  the  fruits  of  which  occasionally  are  offered  as 
evidence  in  federal  courts,  we  would  expect  only  very  minor 
differences  in  what  constitutes  reasonable  knowledge  of  Fourth 


Amendment  law.   Vie  would  expect  all  such  officers  to  be 
knowledgeab?  a  of  the  so-called  "bright  line"  rules  laid  down  in 
this  area  fn...  ^-.imp.   *:.j   time  by  the  Supreme  Court. 

3.   Critics  of  the  current  exclusionary  rule  argue  that  it 
allows  many  criminals  to  escape  conviction.   While  I  know  of  no 
one  who  wants  to  see  the  guilty  go  unpunished,  the  impact  of  the 
exclusionary  rule  has  been  examined  in  two  studies: 

In  1978  the  GAO  surveyed  3,000  cases  in  38  U.S.  Attorneys 
offices  and  found  only  four-tenths  of  one  percent  of  declined 
cases  were  due  to  Fourth  Amendment  search  and  seizure  problems. 
The  report  concluded  "resources  expended  were  modest  when 
compared  with  total  resources  used  in  the  criminal  justice 

The  National  Institute  of  Justice  recently  found  4.8  percent 
of  the  cases  it  studied  in  California  to  be  rejected  on  search 
and  seizure  grounds  from  1976  through  1979. 

Q.   Have  there  been  any  other  studies  of  the  impact  of  the 
exclusionary  rule  in  obtaining  convictions? 

Q.   Have  there  been  any  studies  of  the  impact  of  the 
exclusionary  rule  on  police  conduct? 

Q.  Has  there  been  any  analysis  of  the  quality  of  police 
training  since  the  Supreme  Court  implemented  the  exclusionary 

Q.   Utah,  Colorado,  and  Arizona  recently  enacted  good  faith 
statutes.   Has  there  been  a  study  of  the  effect  of  those  laws? 

Q.   Can't  these  studies  be  interpreted  as  evidence  that  the 
exclusionary  rule  works? 

Q.   Shouldn't  Congress  have  answers  to  such  questions  before 
we  Act? 

Q.   Should  we  change  a  protection  of  a  valuable  Constitu- 
tional right  without  further  information? 

A.   Since  all  of  the  above  questions  deal  with  whether 
studies  have  been  done  that  would  support  or  refute  the  wisdom  of 
a  reasonable  good  faith  exception  to  the . exclusionary  rule,  we 


will  attempt  to  answer  them  en  bloc.   Initially,  we  do  not  make 
any  claim  that  modification  of  the  exclusionary  rule  will,  by 
itself,  reduce  the  rate  of  crime.   On  the  other  hand,  as  we  have 
pointed  out  in  testimony  before  the  Committee  over  the  past  two 
years,  the  rule  operates  to  free  known  murderers,  robbers  and 
drug  traffickers  and  such  a  rule  of  evidence  that  leads  to  those 
results  without  a  reasonable  purpose  to  support  it  is  intoler- 
able.  As  the  Committee  is  aware,  the  ostensible  purpose  of  the 
rule  is  almost  always  stated  by  the  courts  to  be  deterrence  of 
unlawful  police  conduct. 

The  literature  on  the  exclusionary  rule  has  been  voluminous. 
(Indeed,  a  member  of  the  Committee,  Senator  Mathias,  has  been 
among  those  contributing  to  this  body  of  articles.   See  "The 
Exclusionary  Rule  Revisited,"  28  Loyola  Law  Review  1  (1982)  in 
which  the  author  questions  the  constitutionality  of  a  reasonable 
good  faith  exception  to  the  rule.   As  the  Committee  is  aware,  we 
are  confident  our  proposal  would  pass  constitutional  muster.)   In 
our  view,  this  extensive  collection  of  material  has  failed  to 
support  an  argument  that  the  rule  accomplishes  its  alleged 
rationale  of  deterrence.   As  the  Supreme  Court  has  stated 
following  a  review  of  the  literature  that  existed  at  the  time: 
"No  empirical  researcher,  proponent  or  opponent  of  the  rule,  has 
yet  been  able  to  establish  with  any  assurance  whether  the  rule 
has  any  deterrent  effect  even  in  the  situations  in  which  it  is 
now  applied.   United  States  v.  Janis,  428  U.S.  433,  450  f n .  22 

As  for  studies  of  the  exclusionary  rule  to  assess  its  impact 
on  the  conviction  rate  and  on  police  conduct  and  training,  the 
summary  preface  to  the  NIJ  study  describes  the  1978  GAO  study  as 
"the  only  systematic  look  at  the  effects  of  the  exclusionary  rule 
which  has  been  conducted  in  the  past  ten  years."   We  would  also 
take  issue  with  the  implicit  conclusions  of  the  GAO  report  that 
since  less  than  half  of  one  percent  of  the  cases  declined  were 
due  to  the  exclusionary  rule  it  is  not  a  significant  criminal 


justice  issue.   First,  the  GAO  report  is  analytically  flawed 
because  it  only  considered  cases  formally  entered  into  the 
records  of  the  participating  U.S.  Attorney's  Office  and  did  not 
take  into  account  the  cases  informally  discussed  by  Assistant 
U.S.  Attorneys  and  law  enforcement  officers  and  declined  without 
a  written  entry  into  the  system  of  records.   Second,  as  the 
Committee  is  aware,  the  rule  is  a  necessary  consideration  of 
every  police  arrest  and  of  every  seizure  of  physical  evidence, 
and  is  the  overwhelming  component  of  drug  case  litigation. 
Moreover,  litigation  of  exclusionary  rule  issues  contributes  to 
the  appellate  court  overload.   Thus,  the  argument  of  supporters 
of  the  rule  that  it  is  of  no  real  moment  is,  in  our  view,  totally 
disingenuous.   Furthermore,  any  studies  that  would  indicate  that 
the  rule  has  resulted  in  an  improvement  in  police  conduct  and 
training  would  hardly  be  unexpected.   We  would  emphasize, 
however,  that  the  same  high  standards  of  police  conduct  would  be 
requirea  under  our  proposal  as  are  presently  mandated.   As 
explained  in  answer  to  the  previous  question,  police  conduct  must 
be  informed  to  be  reasonable.   Finally,  we  are  unaware  of  the 
existence  of  studies  focusing  on  the  recent  experiences  in  Utah, 
Colorado  and  Arizona,  but  would  be  pleased  to  consider  any 
brought  to  our  attention. 

M.   The  Administration's  proposal  does  not  elaborate  on  the 
test  to  be  employed  in  determining  whether  a  warrantless  search 
was  conducted  in  good  faith. 

How  will  the  court  determine  a  good  faith  exception  in 
warrantless  searches?   Isn't  there  a  risk  of  chaos  in  the  Courts  as 
the  various  district  and  circuit  courts  try  to  reach  their  own 

A.   We  doubt  that  there  will  be  significant  differences  in 
the  federal  courts  in  determining  what  constitutes  a  reasonable 
good  faith  violation  of  the  Fourth  Amendment.   There  has  already 
developed  a  body  of  law  covering  what  constitutes  such  a 


violation  in  connection  with  Bivens ,  or  constitutional  tort, 
suits  discussed  in  connection  with  question  two.   After  the 
Supreme  Court  found  that  the  plaintiff  in  Bivens  had  a  direct 
cause  of  action  under  the  Constitution  against  the  federal  officers 
who  had  arrested  him  and  searched  his  apartment,  it  remanded  the 
case  to  the  court  of  appeals  for  a  determination  of  whether  the 
officers  were  entitled  to  any  sort  of  immunity  due  to  their 
status.   The  court  of  appeals  held  that  they  were  entitled  to 
qualified  immunity.   Specifically,  the  court  held  that  it  was  a 
valid  defense  to  an  alleged  constitutional  tort  for  the  federal 
officers  to  prove  that  they  "acted  in  the  matter  complained  of  in 
good  faith  and  with  a  reasonable  belief  in  the  validity  of  the 
arrest  and  search  and  in  the  necessity  for  carrying  out  the 
arrest  and  search  in  the  way  the  arrest  was  made  and  the  search 
was  conducted."   Bivens  v.  Six  Unknown ,  Named  Agents  of  the 
Federal  Bureau  of  Narcotics,  456  F.  2d  1339,  13^1.   Establish- 
ing such  reasonable  good  faith  is  the  way  in  which  most  Bivens 
suits  which  reach  trial  are  defended.   Thus,  the  development  of  a 
reasonable  good  faith  exception  to  the  exclusionary  rule  would 
parallel  and  draw  upon  this  existing  body  of  law. 


DOJ  1752. lA 
Apr.  27.  1981 




1  ^ 


















to  removal. 


to  removal. 

to  removal. 

to  5-day 

u.  o 

-  to  removal. 

to  removal. 

to   1-day 


Examplet     False 

atatements  In 




of  warrant 


Example:  Groas 
errora   in 
warrants  when 
standard  pro- 
cedure  is  to 
check  further 
and  there  is 
time  to  check 

ExeciA  ing 
warrant   at 
wrong  address, 
fsiling  to 
check  names  of 

26.     Intentional 

vlolstions  of  rules 
governing  searches 
and  ssizures. 

27.     Reckless  disregard 
of  rules  gavernlnq 
sesrches  and 

28.     Negligent 

violations  of 
rules  governing 
searches   and 


Appendix  1 
Page  11 


Senator  Biden.  I  assume  Senator  Specter  will  pursue  the  ques- 
tion on  speedy  trial,  and  whether  or  not  the  administration  would 
object  to  shortening  pretrial  detention  from  90  to  60  days.  The  bail 
provision  in  S.  829  is  substantially  what  this  committee  reported 
last  Congress.  I  will  let  Senator  Specter  address  the  speedy  trial 

Let  me  talk  about  the  drug  strategy  for  just  a  minute.  It  is  con- 
spicuous by  its  absence  in  this  bill.  And  let  me  just  say,  straight 
out,  that  maybe  as  a  consequence  of  your  leaving,  things  seem  not 
to  be  moving  as  smoothly  as  the  administration  has  predicted  they 

I  read  yesterday  a  newspaper  article  in  the  Times  which  reported 
that  the  president  of  the  antidrug  task  force  is  falling  behind  in 
organization.  Officials  said  delays  are  also  caused  by  difference  of 
opinion  about  the  allocation  of  resources  in  the  chain  of  command 
among  participating  agencies. 

Also,  Customs  is  still  apparently  complaining  about  DEA,  to  the 
point  where  the  highest  levels  of  these  agencies  are  having  some 
real  clashes.  I  understand  there  is  even  a  disagreement  within  the 
Justice  Department  as  to  who  should  be  running  the  task  force  in 
the  field. 

You  start  out  with  a  task  force  proposal  to  coordinate  research 
and  policy.  You  say  you  have  complete  control  over  the  budgets  of 
the  participating  agencies,  to  really  make  the  task  force  successful. 
Yet  then  3  years  later,  in  the  fiscal  year  1984  budget  proposal,  the 
administration  gives  back  to  Treasury  budget  authority  over  their 
participation  in  the  task  force.  Now  the  administration  has  intro- 
duced task  forces  under  the  Vice  President's  Organized  Crime  Task 

My  question  is 

The  Chairman.  Your  time  is  up. 

Senator  Biden.  My  time  is  up. 

Well,  let  me  ask  one  that  is  not  for  the  record. 

Who  is  in  charge? 

Mr.  Giuliani.  Well,  Senator,  first  of  all,  the  report  in  the  New 
York  Times,  at  least  the  lead  that  you  read,  is  entirely  inaccurate. 
The  task  forces  are  completely  on  schedule,  and  it  is  somewhat 
frustrating,  because  from  the  very  beginning,  from  the  first 
moment  that  this  program  was  announced,  back  in  October,  it  was 
made  very,  very  clear,  by  everyone,  that  it  would  take  almost  a  full 
year  to  get  the  task  forces  fully  operational,  and  for  a  very  good 
reason.  We  were  moving  1,000  to  1,500  agents  into  new  work,  and  if 
you  did  that  precipitously,  if  you  just  moved  those  1,000  or  1,500 
agents  into  that  new  work  immediately,  they  would  have  to  drop 
the  other  important  things  that  they  were  doing,  and  law  enforce- 
ment would  suffer  tremendously,  so  rather  than  immediately 
moving  them  over  into  the  task  forces  as  we  announced  in  October, 
we  were  going  to  ramp  up  the  task  forces. 

They  began  in  January,  and  they  are  now  about  one-third  to 
about  one-half  staffed,  and  they  are  entirely  and  completely  on 

The  Chairman.  Senator  Specter. 

Senator  Biden.  I  would  like  to  submit  the  rest  for  the  record,  if  I 


The  Chairman.  Without  objection,  that  will  be  done. 
Senator  Biden.  Good  luck  in  your  new  job  coordinating  the  task 
Mr.  Giuliani.  Thank  you. 
[The  following  was  received  for  the  record:] 


Responses  to  Senator  Biden's  questions 
regarding  the  death  penalty 

with  respect  to  crimes  under  the  federal  criminal 
code  that  would  be  punishable  by  death  under  the 
Administration's  Bill,  has  there  been  an  increase 
in  such  crimes  other  than  the  general  rise  in  the 
crime  rate  that  specifically  demonstrates  the  need 
for  a  death  penalty  statute  since  the  Supreme 
Court's  1972  decision  in  Fut  man? 

As  the  question  suggests,  there  has  been  a  striking 

increase  in  the  crime  rate  in  the  United  States  over  the  past  two 

decades.   This  trend  extends  to  homicide,  the  primary  offense  to 

which  a  death  penalty  statute  would,  under  certain  circumstances, 

be  applicable.   For  example,  the  estimated  rate  of  murder  and 

non-negligent  manslaughter  has  nearly  doubled  since  I960: 

Estimated  number  and  rate  of  murder  and  non-negligent 
manslaughter  in  the  United  States  known  to  police,  1960- 

Number  of  Fate  per 

Year  Offenses  10.000  Inhabitants 

1960  9,110  5.1 

1961  8,740  4.8 

1962  8,530  4.6 

1963  8,640  4.6 

1964  9,360  4.9 

1965  9,960  5.1 

1966  11,040  5.6 

1967  12,240  6.2 

1968  13,800  6.9 

1969  14,760  7.3 

1970  16,000  7.9 

1971  17,780  8.6 

1972  18,670  9.0 

1973  19,640  9.4 

1974  20,710  9.8 

1975  20,510  9.6 

1976  18,780  8.8 

1977  19,120  8.8 

1978  19,560  9.0 

1979  21,460  9.7 

V  U.S.  Department  of  Justice,  Sourcebook  of  Criminal  Justice 
Statistics  1981  293  (1982).  ~ 


The  number  of  defendants  charged  with  homicide  in  federal 

court  over  roughly  the  same  period  indicates  a  similar  trend: 

Number  of  defendants  charged  with  homicide  in  United  States 
District  Court,  1961-1981:2/  unitea  estates 

Number  of 
^^^^  Defendants  Charged 

1961  51 

1962  fp 

1963  ^i| 



1966  54 



1968  65 

1969  57 

1970  6^ 



1972  85 

1973  loS 

1974  138 

1975  138 

1976  ill 



1981  168 

While  a  cursory  comparison  of  these  two  sets  of  statistics 
suggests  that  the  increase  in  the  number  of  federally  punishable 
homicides  is  greater  than  the  increase  in  the  rate  of  homicide 
nationwide,  absent  a  comprehensive  analysis  of  truly  comparable 
data,  we  would  refrain  from  concluding  that  the  increase  in 

£/  Administrative  Office  of  United  States  Courts,  Federal  Offenders 
in  the  United  States  District  Court,  1981,  Table  H-7 
(Washington,  D.C.  1982).   It  is  our  understanding  that  these 
statistics  represent  defendants  charged  with  a  homicide 
offense,  per  se,  and  thus  would  not  include  certain  cases  of 
felony-murder,  e.£. ,  a  murder  committed  in  the  course  of  a 
federal  bank  robbery,  where  the  offense  charged  is  the 
underlying  felony. 


federally  punishable  homicides  is  significantly  greater  than  the 
already  alarming  national  increase.   However,  we  do  not  believe 
that  the  propriety  of  a  federal  death  penalty  statute  turns  on 
proof  of  a  disparate  increase  in  the  rate  of  homicides  over  which 
there  is  federal  jurisdiction.   Indeed,  certain  types  of  federal 
homicides,  for  example  assassination  of  the  President  or  a 
federal  judge,  would,  we  expect,  occur  with  such  infrequency  that 
the  incidence  of  their  commission  would  bear  little  relationship 
to  the  national  murder  rate.   The  relative  infrequency  of  the 
commission  of  such  murders  in  which  there  is  a  unusually  strong 
federal  interest  in  prosecution,  however,  is  no  reason  for 
barring  application  of  an  appropriately  severe  sanction  when 
merited  in  a  particular  case. 

What  is  the  evidence  that  a  federal  death  penalty 
statute  would  diminish  the  incidence  of  crimes? 
And  what  is  your  opinion  of  the  conclusion  that  the 
availability  of  the  death  penalty  actually  illicit 
more  violent  crime  by  providing  a  public,  dramatic 
spectical  of  official  violent  homicide  on  the  part 
of  the  government? 

Attempts  to  use  methods  of  statistical  analysis  to 
measure  the  deterrent  effect  of  capital  punishment  have  reached 
differing  conclusions  and  have  been  subject  to  attack  with 
respect  to  methodology.   The  published  debate  generated  by 
Professor  Ehrlich's  research  on  the  deterrence  question  is 

Ehrlich,  "The  Deterrent  Effect  of  Capital  Punishment,"  65 
American  Economic  Review  397  (1975). 

Passell,  "The  Deterrent  Effect  of  the  Death  Penalty:   A 
Statistical  Test,"  28  Stanford  Law  Review  61  (175). 

Bowers  and  Pierce,  "The  Illusion  of  Deterrence  in  Issac 
Ehrlich's  Research  on  Capital  Punishment,"  85  Yale  Law  Journal 
187  (1975). 

25-694  0-84 


Ehrlich,  "Deterrence:   Evidence  and  Inference,"  85  Yale  Law 
Journal  209  (1975) . 

Peck,  "The  Deterrent  Effect  of  Capital  Punishment:   Ehrlich 
and  his  Critics,"  85  Yale  Law  Journal  359  (1976). 

Ehrlich,  "Capital  Punishment  and  Deterrence:   Some  Further 
Thoughts  and  Additional  Evidence,"  85  Journal  of  Political 
Economy  711  (1977). 

Some  attempts  to  show  a  "brutalization"  effect  of  capital 
punishment  (i^.e.  ,  an  increase  in  violent  crime  occasioned  by  an 
execution)  are  summarized  in  Bowers  and  Pierce,  "Deterrence  or 
Brutalization:   What  is  the  Effect  of  Executions?"  26  Crime  and 
Delinquency  453  (1980).   The  work  cited  in  this  article,  however, 
is  less  than  persuasive.   For  example,  failure  to  show  an 
increase  in  homicide  immediately  following  an  execution  in  one 
study  is  reconciled  with  contrary  results  in  other  studies  by 
suggesting  "delayed  brutalization,"  and  the  authors  themselves 
cite  serious  methodological  flaws  in  certain  of  the  studies,  even 
though  it  is  clear  that  they  are  strong  proponents  of  the 
"brutalization"  theory. 

3.   Granting  that  the  likelihood  of  executing  someone 
who  IS  actually  innocent  of  the  crime  is  small 
given  the  elaborate,  process  of  trial,  appeals  and 
post-conviction  remedies,  doesn't  it  remain  true 
that  none  of  our  institutions  are  infalable  and 
that  the  occasional  execution  of  an  innocent  pers6n 
is  a  logical  certainty?   There  have  been  numerous 
news  reports  in  recent  years  about  convicted 
murders  who  turned  out  to  be  innocent  and  were  then 
released.   What  has  happened  to  the  principle  that 

It  is  better  that  10  guilty  people  go  free  than 
that  one  innocent  person  be  punished"? 

In  one  example  Freddie  Pitts  and  Wilbert  Lee 
were  sentenced  to  death  in  Florida  in  1963 
their  execution  was  delayed  because  the 
question  of  capital  punishment  was  being  heard 
m  the  U.S.  Supreme  Court. 

Meanwhile,  another  man  confessed    The 
evidence  pointed  to  his  guilt.   It  still  took 
years  of  legal  battle,  until  1975,  before  the 
governor  s  pardon  came  for  Pitts  and  Lee. 


Twelve  yeais  and  48  days  alter  the  court  had 
ordered  them  executed,  Freddie  Pitts  and 
Wilbert  Lee  walked  out  of  prison.   Had  the 
question  of  the  death  penalty  not  been  bef oi e 
the  courts--had  their  sentences  been  carried 
out  on  schedule--Pitts  and  Lee  would  have  died 
innocent  men. 

They  made  an  easy  target  for  local 
authorities.   Despite  a  weak  case,  th 

proseuctor  had  no  trouble  getting  a 


The  execution  was  delayed  as  the  Supreme  Court 
once  again  heard  a  death  penalty  case.   While 
the  four  waited  on  death  row,  another  man 
confessed.   He  even  drew  a  map  of  the  murder 

Death  is  a  punishment  ^absolute.   Final.   There 
are  no  more  appeals.   No  reversals.   It  is  an 
irrevocable  punishment  carried  out  by  a 
criminal  justice  sytem  that  is  far  from 
perfect.   And  can  never  be  perfect,  as  long  as 
it  is  run  by  human  beings.   Because  human 
beings  make  mistakes. 

What  if  these  men  had  been  executed?   Would 
anyone  have  come  forth  with  new  evidence? 
Would  anyone  have  spent  years  to  prove  their 
innocence?   What  difference  would  a  confession 
have  made?   For  how  many  innocent  people  has 
the  truth  come  too  late? 

Our  criminal  justice  system  is  supposed  to 
insure  against  such  injustice. 

Certainly,  it  is  impossible  to  construct  a  criminal 
Justice  system  which  would  absolutely  assure  no  possibility  of 
error.   Nonetheless,  even  if  some  risk  of  error  is  inherent  in 
our  system,  where  the  death  penalty  is  at  issue,  we  must  reduce 
that  risk  of  error  as  much  as  possible.   This  is  the  very  reason 
that  additional  safeguards,  not  applicable  in  ordinary  criminal 
cases,  are  included  in  our  death  penalty  legislation  to  protect 
against  arbitrariness  and  the  influence  of  prejudice. 


4.   Every  last  country  in  western  Europe  as  well  as 

Canada  and  Mexico  have  abolished  the  death  penalty, 
despite  their  problems  of  crime  and  their  greater 
problems  in  some  of  those  countries  of  terrorism 
and  political  assassination.   United  Natins  bodies. 
Amnesty  International,  the  Pope  and  other  voices 
worthy  of  respect,  have  called  for  the  abolition  of 
capital  punishment.   We  have' about  1,200  people  on 
death  row  now  and  are  sentencing  additionally  some 
250  people  to  death  a  year  under  state  laws.   Why 
do  you  think  the  federal  government  should  add  to 
that  prospective  blood  bath,  especially  when  the 
death  penalty  has  never  been  proven  to  deter  crime? 

We  are  aware  that  there  are  men  of  ability,  goodwill, 
and  conscience  who  believe  that  it  is  never  justified  for  society 
to  deprive  an  individual  of  life,  however  grave  and  despicable 
may  have  been  his  crimes  and  however  much  a  threat  his  actions 
may  pose  to  others  in  the  community  or  to  the  survival  of  the 
community  itself.   But  while  recognizing  these  views,  this 
Administration  does  not  subscribe  to  them.   Moreover,  the 
Administration's  position  is  in  accord  with  the  views  of  the 
majority  of  the  American  public.   Since  the  Furman  decision,  more 
than  two-thirds  of  the  State  legislatures  have  enacted  death 
penalty  laws  designed  to  meet  the  constitutional  requirements 
articulated  by  the  Supreme  Court  over  the  last  decade,  and 
national  public  opinion  polls  consistently  show  that  a  large 
majority  of  our  citizens  support  death  penalty  laws. 

5.   Won't  life  in  prison  without  the  possibility  of 

parole  be  just  as  effective  as  in  accomplishing  the 
goals  of  capital  punishment — without  risking  the 
death  of  an  innocent  human  being? 

We  believe  life  imprisonment  without  the  possibility  of 
parole  would  not,  in  certain  cases,  be  as  effective  a  punishment 
as  the  death  penalty.   First,  there  are  some  offenses  which  are 
so  harmful  and  so  reprehensible  that  not  even  life  imprisonment 
would  represent  an  adequately  just  and  proportionate  response  to 
the  defendant's  crime.   Second,  with  respect  to  certain  crimes 
involving  calculation  and  premeditation,  the  death  penalty,  as  a 
more  severe  sanction,  can  be  a  more  effective  deterrent.   Third, 
capital  punishment  assures  that  a  brutal  murderer  cannot  again 


take  the  life  of  an  innocent  victim.   Proponents  of  the  life 
imprisonment  alternative  have  asserted  that  it  serves  this 
"incapacitation"  purpose  of  sentencing  equally  as  well  as 
imposition  of  the  death  penalty.   While  this  may  be  true  with 
respect  to  protecting  members  of  the  public  at  large,  it  affords 
no  such  protection  to  potential  victims  at  the  facility  in  which 
the  prisoner  is  incarcerated,  victims  who  would  include  both 
correctional  officers  and  other  inmates.   Moreover,  in  the  case 
of  a  prisoner  already  under  a  life  sentence,  were  the  death 
penalty  unavailable,  there  would  be  no  available  sanction  to 
punish  or  deter  his  commission  of  another  murder  while  in  prison. 

In  the  50  years  between  1930-1980,  according  to 
justice  department  figures,  there  were  33  persons 
executed  by  federal  authorities,  fewer  than  1  a 
year.   Some  of  those  offenders  could  no  doubt  have 
been  tried  as  well  as  under  state  laws,  others  were 
executed  under  extremely  controversial 
circumstantes (for  example,  the  Rosenburgs  in  the 
1950's),  at  least  10  of  the  33  were  executed  under 
provisions  that  the  U.S.  Supreme  Court  has  by  now 
defined  as  constitutionally  impermissible  (for 
rape,  armed  robbery  or  kidnapping) .   If  the  Federal 
death  penalty  is  going  to  be  used  so  rarely, 
doesn't  this  suggest  that  it  is  not  needed  at  all? 
And  if  it  is  going  to  be  used  at  such  a  rate  isn't 

it  ti ue  that  what  ever  detei rent  effect  some  people 
think  capital  punishment  might  have  would  not  come 
into  play  under  federal  statute? 

6.   Clearly,  a  federal  death  penalty  statute  would  be 
applicable  in  far  fewer  cases  than  would  State  death  penalty 
provisions.   This  is  because  the  vast  majority  of  first-degree 
murders,  the  offenses  for  which  the  death  penalty  would  be  most 
frequently  applicable,  occur  in  circumstances  giving  rise  to 
State,  rather  than  federal,  jurisdiction.   The  infrequency  with 
which  a  federal  death  penalty  provision  might  be  invoked  (rela- 
tive to  the  rate  at  which  State  death  penalty  provisions  might  be 
applied)  is,  however,  no  justification  for  precluding  application 
of  the  sanction  in  appropriate  federal  cases.   For  example,  cases 
involving  paid  assassination  of  a  federal  judge  or  wartime 
espionage  are  likely  to  be  rare.   Yet,  under  certain  circum- 


stances,  these  are  the  very  sorts  of  offenses  for  which  the  death 
penalty  might  be  appropriate.   The  fact  that  such  cases  arise 
infrequently  is  no  more  a  justification  for  failing  to  provide 
the  opportunity  for  imposition  of  a  proportionate  punishment  than 
it  would  be  for  Congress  to  decline  to  provide  federal  jurisdic- 
tion over  these  offenses.   Congress  has  provided  for  federal 
jurisdiction  over  these  sorts  of  offenses  because  of  the  substan- 
tial federal  interests  implicated,  and  vindication  of  these 
interests  requires  tnat  appropriate  sanctions  be  available.  The 
suggestion  that  a  federal  death  penalty  is  not  necessary  because 
in  particularly  heinous  cases  we  could  decline  prosecution  in 
favor  of  a  State  prosecution  where  the  death  penalty  would  be 
available  under  the  State's  law,  makes  a  mockery  of  the  appro- 
priate exercise  of  federal  criminal  jurisdiction  and  would 
require  us  to  abdicate  the  law  enforcement  responsibilities 
conferred  upon  us  by  the  Congress  in  the  very  sorts  of  cases 
where  the  reasons  for  federal  prosecution  might  be  most  com- 
pelling.  Moreover,  the  assumption  that  concurrent  State 
jurisdiction  will  always  exist  is  unfounded.   There  are  numerous 
areas  of  exclusive  federal  jurisdiction  in  which  the  option  of 
State  prosecution  will  not  be  present. 


Sc'iiatof  Bidoii's  Questions  on 
Research  and  Statistics 

Mi.  Jensen,  as  I  understand  this  proposal  you  would 
consolidate  the  Bureau  of  Justice  Statistics,  National 
Institute  of  Justice  and  the  grant  agency  together 
under  an  Assistance  Attorney  General.   This  Assistant 
Attorney  General  would  have  final  authority  over 
grants,  staff  and  policy  for  all  these  agencies. 

I  have  a  real  concern  that  the  independence  and 
ability  for  the  research  and  statistics  programs  to 
provide  objective  information  on  crime  is  threatened 
under  this  proposal.   What  is  your  opinion  on  that? 

Can  you  assure  this  Committee  that  useful  and 
reliable  information  will  continue  and  will  not  be 
threatened  by  the  transfer  of  funds  from  these 
important  programs  to  increase  the  pool  of  funds  in  the 
grant  program,  should  this  new  structure  be 

Let  me  clarify  my  position  on  the  independence 
necessary  for  research  and  statistics.   It  is  essential 
that  we  have  a  strong  research  and  statistic  component 
that  is  adequately  funded  and  works  in  unison  with  the 
funding  and  grant  making  agency  so  we  can  begin  to  find 
out  what  works  in  fighting  crime.   Research  and 
evaluation  must  maintain  a  degree  of  automony  so  as  to 
be  in  a  position  to  objectively  tell  us  what  our  course 
of  action  should  be.   We  must  avoid  spenting  limited 
federal  dollars  on  programs  that  don't  work.   The  only 
way  we  will  know  this  is  if  there  is  good  objective 
data  on  the  success  or  failure  of  these  programs. 

How  much  direct  control  over  the  operations  of  each 
of  these  programs  will  the  Assistant  Attorney  General 

Will  he  or  she  be  experienced  in  the  application  of 
crime  statistics  and  research  to  make  decisions  about 
the  types  of  projects  and  studies  to  be  funded  by  the 
Bureau,  of  Justice  Statistics  and  National  Institute  of 
Just  ice? 

Responses  to  Senator  Biden's  questions  regarding  Research  and  Statistics: 

Vfhile  It  is  true  that  the  Administration's  proposal  would 
consolidate  the  National  Institute  of  Justice  and  the  Bureau  of 
Justice  Statistics  along  with  a  new  Bureau  of  Justice  Programs 
under  the  general  authority  of  the  Assistant  Attorney  General, 
the  day-to-day  operations  of  these  three  Bureaus  will  be  the  sole 
responsibility  of  the  individual  Bureau  directors.   As  you  know, 
funds  may  not  be  transferred  from  research  or  statistics  to 
another  function  without  prior  Congressional  approval  for  the 
reprogrammlng.   I  do  not  envision  the  necessity  for  such  a 
request  inasmuch  as  it  has  never  arisen  during  the  history  of 
agencies  responsible  for  support  of  state  and  local  criminal 
Justice.   The  Administration  has  consistently  supported  the 
research  and  statistics  functions. 



1.  Mr.  Attorney  General,  the  bipartisan  crime  bill  that  the 
President  vetoed  last  January  included  a  number  of  provisions 
one  of  which  was  a  Justice  Assistance  program.  I  assume  that 
was  one  provision  you  did  not  object  to? 

The  justice  assistance  portion  of  H.R.3963  was  the  product  of 
last-minute  efforts  at  compromise  between  the  views  of  the 
Senate,  House  and  the  Administration  during  the  final  hours 
of  the  97th  Congress.   Although  well  intentioned,  the  result 
was  a  seriously  deficient  product  which  only  marginally 
reflected  the  streamlined  program  desired  by  all  parties. 

2.  I  understand  that  the  Justice  Assistance  proposal  in  S.829  is 
different  from  the  provision  agreed  to  in  the  bipartisan 
crime  package.   Why  is  that? 

As  noted  above,  H.R.3963  fell  far  short  of  the  objectives 
Identified  during  the  Senate  and  House  committee  hearings  on 
the  Justice  assistance  proposals.   It  failed  to  focus  Federal 
financial  assistance  on  violent  and  repeat  offenders;  it 
would  have  permitted  Federal  funds  to  be  used  to  pay  for 
state  and  local  administrative  costs;  it  would  have  continued 
the  fragmented  and  uncoordinated  organizational  arrangement; 
and,  it  failed  to  Include  the  requested  improvements  in  the 
Public  Safety  Officers'  Benefits  program.   S.829  is  designed 
to  rectify  those  shortcomings  while,  at  the  same  time, 
incorporating  the  major  characteristics  of  H.R.3963. 

3.  I  understand  Congressman  Hughes'  Justice  Assistance  bill  is 
pending  floor  action  this  week  in  the  House.   That  bill  is 
very  different  from  the  bill  you  are  proposing  here.   Can  you 
explain  to  me  the  difference  in  bills? 

H.R.2175,  as  passed  by  the  House,  is  very  similar  in  most 
respects  to  S.829.   Both  provide  for  block  and  discretionary 
grant  funding.   Both  seek  to  limit  Federal  funding  to 
programs  or  projects  with  a  demonstrated  track  record  of 
success.   Both  seek  to  establish  a  program  of  emergency 
Federal  assistance.   The  Administration  proposal  sharpens  the 
focus  of  the  Federal  program  on  violent  crime,  repeat 
offenders,  victim/witness  assistance  and  crime  prevention, 
and  it  also  streamlines  the  organizational  structure  of  the 
research,  statistical  and  financial  assistance  programs. 

4.  When  we  went  to  conference  with  the  House  in  December,  I  was 
concerned  about  protecting  the  independence  of  research  and 
statistics  and  believe  we  drafted  a  bipartisan  bill  that  was 
acceptable  to  both  the  House  and  Senate.   Realizing  that  if 
and  when  this  bill  is  passed  in  the  Senate  it  will  go  to 
conference  with  Congressman  Hughes'  bill,  I  am  curious  why 
you  Just  didn't  go  with  the  bipartisan  language  we  all  agreed 
to  in  December? 

Does  the  Justice  Department  have  an  objection  to  a  substitute 
amendment  that  contains  the  bipartisan  language? 

Because  of  the  concerns  noted  in  1  and  2  above,  the 
Administration  redrafted  the  troublesome  portions  of 
H.R.3963  and  submitted  as  Title  VIII  what  we  consider  to  be  a 
significantly  improved  proposal.   The  Department  would 
therefore  strongly  object  to  the  substitution  of  language 
from  H.R.3963  of  the  97th  Congress. 


The  Chairman.  Senator  Specter. 

Senator  Specter.  I  would  like  to  commend  the  Department  of 
Justice,  and  you  gentlemen,  for  this  package  which  you  have  put 
together.  It  is  a  very  large  effort,  and  I  am  hopeful  that  we  can 
move  it  forward.  I  appreciate  the  fact  that  representatives  from  the 
Department  came  to  visit  with  me  about  it.  There  are  quite  a 
number  of  parts  of  it,  and  I  have  a  number  of  questions. 

I  am  concerned  that  we  move  as  much  as  we  can  as  promptly  as 
we  can.  If  we  can  move  the  entire  package,  and  come  to  a  resolu- 
tion of  the  entire  package,  it  is  not  obviously  going  to  be  something 
that  everybody  in  Congress  will  necessarily  agree  with,  but  I  do 
commend  the  Department  for  pushing  ahead  with  it,  and  trying  to 
bring  it  to  a  rapid  conclusion. 

With  respect  to  the  bail  provision,  I  think  I  know  your  position, 
but  I  would  like  to  broach  that  subject,  since  I  have  gotten  that  as- 
signment from  Senator  Biden.  I  have  concerns  about  the  provisions 
governing  pretrial  detention.  It  is  a  very  complex  matter,  with 
strong  arguments  on  both  sides,  involving  the  need  for  the  protec- 
tion of  the  community,  as  opposed  to  the  issue  of  constitutional 
rights  and  the  presumption  of  innocence. 

I  am  concerned  about  a  rule  which  permits  pretrial  detention  for 
as  long  as  90  days.  I  am  frankly  concerned  about  a  rule  that  per- 
mits detention  as  long  as  60  days.  It  would  be  my  hope  that  this 
procedure  could  be  utilized  within  a  timeframe  of  60  days. 

We  had  hearings  in  the  Appropriations  Subcommittee  of  the  Dis- 
trict of  Columbia  last  week,  and  noted  the  very  small  number  of 
applications  made  under  that  pretrial  or  preventative  detention 
procedure — something  like  50  in  the  course  of  the  year. 

My  question  is  why  could  it  not  be  structured  so  that  in  those 
few  cases  where  defendants  are  held  in  custody,  a  severe  change  in 
our  procedure,  they  could  not  be  brought  to  trial  in  a  more  prompt 
period  of  time  than  90  days? 

Mr.  Giuliani.  Senator,  the  difference  between  60  and  90  days  is, 
I  think 

Senator  Specter.  Is  30  days. 

Mr.  Giuliani.  Is  an  important  one,  given  the  kinds  of  cases  that 
generally  would  be  the  ones  in  which  you  would  have  pretrial  de- 
tention in  the  Federal  system. 

Basically  these  are  going  to  be  drug  cases.  There  will  be  some 
violent  crime  cases  on  a  sporadic  basis,  but  in  large  measure,  situa- 
tions in  which  pretrial  detention  is  going  to  be  used  in  the  Federal 
system  will  be  for  the  major  defendants,  in  the  largest  drug  cases, 
and  it  could  be  difficult  to  bring  those  cases  to  trial  within  60  days, 
it  is  going  to  be  difficult  to  do  it  within  90  days,  although  it  will  be 

You  are  not  talking  about  a  one-defendant,  two-defendant  case. 
You  are  very  often  talking  about  a  13,  14  defendant  case,  in  which 
the  2  or  3  leaders  of  the  drug  operation  would  be  the  ones  who 
would  be  incarcerated  pretrial  if  this  bill  becomes  law,  and  very 
often  the  people  do  not  speak  English,  therefore,  you  need  inter- 

The  trial  is  a  very  major  undertaking,  it  is  not  just  a  one  or  two 
defendant  trial  that  could  be  tried  quickly.  So  I  could  see  some  real 
dangers  in  having  a  hard  and  fast  60-day  rule.  Although,  on  the 


other  side  of  it,  The  Speedy  Trial  Act  that  we  now  have  a  number 
of  years  of  experience  with  in  the  Federal  system  has  not  been  a 
tremendous  burden  for  the  Federal  prosecutors  to  comply  with.  It 
has  been  a  much  greater  burden  for  defense  lawyers,  who  more 
often  than  not  are  the  reasons  why,  in  fact,  in  80  percent,  and  90 
percent  of  the  situations  where  there  is  delay,  it  is  at  the  request  of 
the  defense,  not  at  the  request  of  the  Government. 

So  it  is  something  that  I  would  like  to  look  into  more  carefully, 
and  normally  I  would  agree  with  you.  I  think  a  case  where  we  are 
dealing  with  the  kinds  of  crimes,  for  example,  that  you  would  basi- 
cally be  dealing  with  in  the  District  of  Columbia,  or  in  a  local  juris- 
diction, I  would  agree  completely  with  you,  that  a  60-day  limitation 
would  be  the  more  appropriate  one. 

But  the  fear  that  I  have  is  that  what  we  would  basically  be  deal- 
ing with  here  are  complex  cases,  and  that  difference  of  30  days 
could  be  a  significant  one,  but  I  think  it  is  something  we  should 
look  into  more  carefully,  and  I  certainly  agree  with  your  concerns. 

Senator  Specter.  Well,  we  will  see  what  will  happen  with  the 
legislative  result,  and  it  may  be  that  the  90-day  rule  prevails.  If 
that  is  so,  I  would  hope  that  the  Justice  Department  would  take  a 
close  look  at  the  timing  of  those  cases  and,  to  the  extent  possible, 
bring  all  those  defendants  to  trial  at  the  earliest  possible  date,  per- 
haps even  in  advance  of  60  days. 

But  let  us  judge  from  the  experience,  if  we  can  get  it  through  to 
see  where  we  are  heading,  and  in  addressing  this  concern,  to  the 
perspective  U.S.  attorney  for  the  very  important  southern  district 
of  Manhattan,  it  is  a  sounding  which  could  be  of  some  utility  in  a 
very  critical  area. 

I  have  expressed  this  view  to  the  U.S.  attorneys  in  Pennsylvania 
and,  wherever  I  have  a  chance,  I  will  continue  to  do  so. 

When  we  talked  about  the  package  a  few  days  ago,  Mr.  Giuliani, 
we  discussed  the  issue  of  juvenile  coverage,  and  I  have  raised  a 
number  of  points  with  you  and  Mr.  McConnell,  that  we  wanted  to 

The  chairman  has  asked  me  to  preside  over  the  hearings  on  May 
19,  and  I  have  sent  a  letter  to  Attorney  General  Smith,  asking  that 
the  specifics  be  prepared.  I  will  utilize  that  time,  rather  than  take 
time  now,  from  this  full  committee  hearing. 

But  I  wanted  to  call  that  to  your  attention  so  that  you  might 
make  a  special  effort  to  see  that  we  are  in  a  position  to  explore 
those  issues  on  May  19. 

Mr.  Giuliani.  I  will.  Senator. 

Senator  Specter.  Mr.  Jensen,  first,  I  compliment  you  on  your 
designation  for  the  Associate  Attorney  General's  position. 

One  of  the  subjects  we  talked  about  the  other  day  concerns  the 
seizure  issue,  and  I  have  since  gotten  hold  of  the  opinion  of  the 
fifth  circuit  and  noted  that  it  was  a  1980  decision,  I  would  be  inter- 
ested to  know  if  the  Department  of  Justice  has  made  an  effort  in 
any  other  judicial  forum,  to  have  the  good-faith  rule  carried  for- 
ward as  a  matter  of  judge-made  case  law? 

Mr.  Jensen.  Yes,  as  a  matter  of  fact,  in  the  Illinois  v.  Gates  case, 
that  Senator  Biden  alluded  to,  the  Justice  Department  filed  an 
amicus  curiae  brief  which  fully  supported  the  statement  of  the  rea- 


sonable  good-faith  test.  So  that  argument  was  specifically  made,  it 
was  presented  to  the  Court  by  the  Solicitor  General. 

Senator  Specter.  In  which  Court  was  that? 

Mr.  Jensen.  That  was  Illinois  v.  Gates. 

Senator  Specter.  That  was  the  Supreme  Court? 

Mr.  Jensen.  Yes. 

Senator  Specter.  I  am  familiar  with  that,  and  we  talked  about  it. 
They  may  rule  on  this  issue,  or  they  may  decide  on  other  grounds. 

Mr.  Jensen.  Yes,  it  is  pending  now. 

Senator  Specter.  But  has  the  issue  been  raised  in  any  other  cir- 
cuit? Where  does  Illinois  v.  Gates  come  from,  the  Illinois  appellate 

Mr.  Jensen.  Yes,  but  it  was  a  specific  case,  it  was  a  case  that  was 
filed  in  the  Illinois  courts,  and  came  up  to  the  Court  through  cer- 

Senator  Specter.  But  has  the  Justice  Department  endeavored  to 
have  the  good-faith  rule  adopted  by  any  other  circuit  court,  or  U.S. 
district  court? 

Mr.  Jensen.  We  have  raised  that  issue  on  several  occasions,  in 
other  circuits.  It  has  not  had  another  definitive  ruling  as  was  made 
in  U.S.  V.  Williams. 

In  many  of  these  instances,  there  could  be  different  kinds  of 
bases  for  the  rulings,  but  there  has  been  no  other  definitive  ruling 
by  a  circuit  court  on  good  faith. 

Senator  Specter.  There  is  one  other  subject  that  I  want  to  touch 
upon  very  briefly. 

Yesterday,  I  proposed  an  amendment  to  the  budget  resolution 
that  yesterday  would  direct  some  Federal  funding  toward  construc- 
tion of  prisons,  to  be  used  for  convicts  sentenced  under  the  State 
habitual  offender  laws,  or  other  State-enhanced  statutes. 

This  is  a  bill  that  I  introduced  in  the  97th  Congress,  S.  1989,  and 
a  bill  which  has  been  reintroduced  in  the  98th  Congress,  as  Senate 
bill  58. 

In  the  current  budget  resolution  there  is  an  allocation  of  some 
$400  million,  750  classification  funds,  in  excess  of  what  the  Justice 
Department  has  asked  for. 

In  the  event  that  the  Senate  does  not  deem  it  wise  to  add  $100 
million,  which  I  am  asking  for  in  this  resolution,  to  be  supplement- 
ed in  2  outyears,  would  you  consider  it  an  appropriate  use  of  funds 
to  direct  some  of  the  funding  toward  that  objective?  Before  you 
answer,  I  would  like  to  say  just  a  word  or  two  about  the  proposi- 

The  Attorney  General's  Task  Force  has  recommended  $500  mil- 
lion a  year  in  assistance  for  overcrowding  in  State  prisons.  There 
were,  as  I  think  you  know,  appalling  statistics  disclosed  last  year 
about  the  overcrowded  condition  of  the  prison  system  in  this 
Nation,  with  some  42,000  additional  inmates  in  custody,  just  during 
the  course  of  the  past  year. 

I  frankly  have  a  sense  that  the  national  decrease  in  the  crime 
rate  may  be  attributed  to  the  increased  incarceration.  I  would  be 
interested  in  your  views  on  that. 

Mr.  Giuliani.  Senator,  I  certainly  would  need  more  time  to  dis- 
cuss it,  and  look  at  it,  but  there  is  no  doubt  that  the  first  priority 
in  readjusting  the  criminal  justice  system  has  to  be  corrections. 


I  think  it  is  something  that  we  would  be  very  interested  in  look- 
ing at.  I  cannot  give  you  a  definitive  answer,  but  if  there  is  this 
additional  money,  and  there  is  a  way  in  which  we  can  use  it  to 
assist  in  dealing  with  the  overcrowding  situation  of  prisons,  as  we 
are  trying  to  do  with  the  Federal  surplus  property  amendment  that 
IS  in  this  package 

Senator  Specter.  This  committee  has  held  extensive  hearings  on 
the  issue  of  career  criminals.  The  feeling  is  that  there  may  be 
around  200,000  career  criminals  in  this  country— men,  women  who 
have  committed  two,  three  or  more  burglaries  or  robberies,  or 
rapes.  If  we  were  to  provide  prison  space  for  them,  at  about  $5o',000 
a  cell,  that  would  cost  $10  billion. 

I  could  not  attend  those  hearings,  because  I  was  attending  the 
MX  hearings,  where  they  were  talking  about  the  $20  billion  missile 
system  for  which  we  cannot  find  housing,  and  the  thought  is  on  my 
mind  now,  and  I  do  not  propose  to  house  them  in  Federal  pris- 

Senator  Biden.  Maybe  if  we  put  them  together— the  MX  and  the 
career  criminals. 

Senator  Specter.  Get  200,000  birds 

Senator  Biden.  Career  criminals,  that  is  right. 

Senator  Specter.  Kill  two  birds  with  one  stone,  house  200,000 
career  criminals  for  the  cost  of  one  missile. 

But  my  thought  is  that  if  we  ever  intend  to  get  serious  about  the 
problem  of  habitual  offenders,  and  if  we  were  to  incarcerate  those 
200,000  in  this  country,  based  on  the  Commission  on  Criminal  Jus- 
tice Standards  and  Goals  for  1973,  to  reduce  violent  crime  by  in 
excess  of  50  percent,  that  is  a  $10  billion  expenditure  which  might 
be  well  worth  directing  our  attention  to,  and  what  I  am  trying  to 
do  IS  put  a  foot  in  the  door,  with  a  start  of  that  program  this  year. 

Thank  you  very  much,  Mr.  Giuliani. 

Thank  you,  Mr.  Chairman. 

The  Chairman.  Mr.  Jensen,  I  have  just  one  question  here,  and 
then  I  am  going  to  turn  this  hearing  over  to  Senator  Specter. 

Is  it  not  true  that  a  reasonable  good  faith  belief  in  the  lawfulness 
of  the  conduct  is  a  well  established  defense  for  a  police  officer  who 
sues  in  a  civil  case  for  violation  of  constitutional  rights? 

Mr.  Jensen.  In  constitutional  tort  cases,  that  is  correct.  Senator. 

The  Chairman.  Now,  our  next  witness  is  Mr.  John  Walker,  from 
the  Department  of  Treasury. 

Mr.  Walker,  we  are  very  pleased  to  have  you  here,  and  I  have 
another  engagement.  I  am  going  to  ask  Senator  Specter  to  continue 
the  hearing. 

You  have  a  long  statement.  I  believe  you  can  summarize  it. 


Mr.  Walker.  Thank  you  very  much,  Mr.  Chairman. 

Yes,  I  would  like  to  ask  that  my  complete  statement  be  made  a 
part  of  the  record,  and  then  I  would  like  to  summarize  from  it. 

The  Chairman.  Without  objection,  that  will  be  done. 

Mr.  Walker.  Mr.  Chairman  and  members  of  the  subcommittee, 
thank  you  for  affording  me  the  opportunity  to  present  the  views  of 
the  Treasury  Department  on  the  proposed  Comprehensive  Crime 


Control  Act  of  1983.  From  Treasury's  perspective,  this  proposed  leg- 
islation would  provide  urgently  needed  reforms  that  are  critical  to 
our  law  enforcement  efforts.  We  strongly  support  enactment  of  this 
legislation  as  a  package  because  of  the  importance  of  addressing 
deficiencies  in  our  criminal  justice  system  in  a  systematic  and  com- 
prehensive manner.  I  believe  that  this  bill  achieves  this  goal  and 
will,  on  the  whole,  make  a  significant  contribution  to  our  Nation's 
struggle  against  crime. 

In  my  testimony  today,  I  will  concentrate  on  those  provisions 
that  are  of  particular  importance  to  the  enforcement  efforts  of  the 
Treasury  Department,  including  those  in  which  Justice  and  Treas- 
ury currently  share  joint  law  enforcement  responsibilities. 

This  bill  would  strengthen  Treasury  law  enforcement  by  stream- 
lining criminal  and  civil  forfeiture  procedures,  improving  enforce- 
ment against  currency  violations  under  the  Bank  Secrecy  Act,  miti- 
gating liability  of  law  enforcement  officers  under  the  Federal  Tort 
Claims  Act  and  improving  enforcement  against  forged  endorse- 
ments of  Federal  securities,  bank  fraud,  bribery  of  bank  officers, 
and  receipt  of  stolen  bank  property.  I  will  address  each  of  these 
topics  separately. 

Turning  to  the  criminal  and  civil  forfeiture  provisions  under  title 
IV.  By  revising  the  laws  governing  criminal  and  civil  forfeiture, 
this  bill  would  increase  the  effectiveness  of  an  essential  Federal 
weapon  against  drug  trafficking  and  organized  crime.  This  expand- 
ed forfeiture  authority  will  greatly  assist  the  operations  of  the 
Drug  and  Organized  Crime  Task  Forces  announced  by  the  Presi- 
dent last  October.  Seizure  of  the  ill-gotten  proceeds  of  drug  traffick- 
ing deprives  the  trafficker  of  the  fruits  of  his  crimes  and  the  finan- 
cial base  for  further  drug  dealing. 

Today,  criminal  forfeitures  can  occur  only  when  the  enterprise 
requirements  under  the  Racketeer-Influenced  and  Corrupt  Corrupt 
Organizations  and  the  Continuing  Criminal  Enterprise  statutes  are 
met.  Title  IV  of  the  bill  would  strengthen  the  criminal  forfeiture 
power  by  causing  it  to  be  triggered  by  a  simple  felony  drug  offense. 
It  would  then  provide  for  the  forfeiture  of  all  proceeds  from  drug 
offenses  and  property  used  to  commit  them.  The  bill  would  thus 
provide  a  valuable  complement  to  the  other  statutory  enforcement 
measures,  including  the  Bank  Secrecy  Act  and  relevant  provisions 
of  the  Internal  Revenue  Code,  that  are  designed  to  deprive  drug 
traffickers  of  the  assets  they  need  to  continue  their  illicit  oper- 

Additionally,  several  new  provisions  will  bring  greater  effective- 
ness to  the  Federal  criminal  forfeiture  process  in  general.  These  in- 
clude new  authority  for  courts  to  enter  restraining  orders  against 
the  transfers  of  forfeitable  assets  during  the  preindictment  stages 
of  a  case.  In  instances  where  a  restraining  order  may  be  insuffi- 
cient, such  as  where  property  is  easily  moved  or  concealed,  the 
Government  would  be  empowered  to  obtain  a  warrant  authorizing 
seizure  of  the  property.  Courts  would  also  be  able  to  void  transfers 
that  have  already  occurred  and,  in  some  circumstances,  order  the 
forfeiture  of  substitute  assets. 

The  bill  would  also  improve  the  method  of  payment  for  expenses 
incurred  by  the  Government  in  conducting  forfeiture  actions  by  es- 


tablishing  forfeiture  funds  in  the  Departments  of  Justice  and 

The  establishment  of  these  funds  would  allow  the  Government  to 
conduct  forfeiture  actions  with  much  greater  dispatch  while  pro- 
moting overall  cost  savings.  Better  storage  and  maintenance  of 
seized  property  would  result,  because  Justice  and  Treasury  would 
be  able  to  balance  forfeiture  expenses  with  forfeiture  proceeds. 

Senator  Specter  [presiding].  How  much  do  you  think  it  likely 
that  the  Government  would  take  in  on  forfeiture  proceeds,  Mr. 

Mr.  Walker.  Well,  I  think  that  we  can  estimate  that  with  for- 
feiture proceeds,  the  ability  to  seize  and  to  forfeit  and  seize  and  sell 
administratively,  we  are  talking  in  the  many  tens  of  millions  of 
dollars,  perhaps  hundreds  of  millions  of  dollars. 

Senator  Specter.  To  what  extent  are  there  any  proceeds  for  for- 
feiture available  at  the  present  time? 

Mr.  Walker.  Well,  there  are  not.  The  forfeiture  proceeds  today 
go  into  the  general  fund.  So  they  are  not  available  now  for  the  use 
in  defraying  expenses  of  forfeiture,  or  for  paying  for  the  budgets  of 
the  law  enforcement  agencies  involved. 

Senator  Specter.  How  much  money  was  seized  as  a  result  of  for- 
feitures, say,  in  the  last  year? 

Mr.  Walker.  Well,  I  can  supply  that  figure  in  some  detail  for 
you,  for  the  record.  But  in  terms  of  the  currency  forfeitures,  we  are 
talking  in  terms  of  many  tens  of  millions  of  dollars,  perhaps,  $50 
million,  perhaps  more.  We  will  supply  that. 

Senator  Specter.  We  would  be  interested  to  know  that. 

Mr.  Walker.  Yes. 

[The  following  was  subsequently  received  for  the  record:] 

The  total  amount  of  currency  and  property  seized  and  forfeited  in  fiscal  year  1982 
is  not  precisely  known.  However,  a  joint  study  team  of  the  U.S.  Department  of  Jus- 
tice estimate  that  property  appraised  at  approximately  $245  million  was  subject  to 
judicial  forfeiture  in  fiscal  1982.  The  study  did  not  include  an  estimate  of  the  total 
amount  of  currency  subject  to  forfeiture. 

In  addition,  the  magnitude  of  combined  civil  and  judicial  forfeiture  can  be  seen  in 
the  following  statistics  from  Customs  and  DEA.  For  fiscal  year  1982,  U.S.  Customs 
reported  a  total  of  $239,912,507  in  currency  and  property  seized  and  subject  to  for- 
feiture as  a  result  of  its  use  in  violation  of  the  laws  enforced  by  Customs.  These 
assets  were  in  the  following  categories: 

Monetary  instruments $32,757,121 

Vehicles 35,935,720 

Aircraft 34,742,505 

Vessels 44,461,893 

General  merchandise 92,015,268 

Total 239,912,507 

DEA  reported  a  total  figure  of  $106,656,948  in  currency  and  property  seized  and 
subject  to  forfeiture.  A  breakdown  according  to  the  type  of  asset  was  not  available 
but  is  currently  in  preparation  by  DEA. 

Senator  Specter.  Mr.  Walker,  how,  if  at  all,  does  this  forfeiture 
bill  differ  from  the  bill  which  was  enacted,  was  passed,  rather,  by 
the  Congress  last  year,  part  of  the  seven  point  package  which  the 
President  vetoed? 

Mr.  Walker.  I  think,  in  substance,  it  contains  most  of  the  same 
provisions.  But  substantively,  we  do  not  have  a  major  difference 


Senator  Specter.  No  major  differences? 

Mr.  Walker.  Right. 

Senator  Specter.  Last  year,  when  we  were  negotiating  this,  at 
the  very  end,  there  had  been  a  representation  that  the  Justice  De- 
partment wanted  something  substantially  stronger  than  what  had 
been  passed,  and  there  was  some  discussion  with  Congressman 
Hughes,  in  the  House,  on  this. 

Mr.  Walker.  Senator  Specter,  I  would  like  to  clarify  my  state- 

I  was  speaking  largely  from  the  Customs  forfeiture  provisions,  in 
terms  of  Treasury's  interests,  but  I  would  like  Mr.  Jensen  or  Mr. 
Giuliani  to  address  the  Justice  Department's  views  with  regard  to 
your  last  question. 

Mr.  Jensen.  Senator,  if  I  may,  there  were  some  significant  areas 
that  the  Justice  Department  wanted  to  see  in  the  forfeiture  realm 
that  were  not  part  of  the  legislation  that  was  passed. 

For  example,  it  did  not  deal  with  the  issues  of  profits  and  pro- 
ceeds in  RICO  cases,  for  example.  That  was  not  part  of  the  bill  that 
was  passed,  and  that  was  a  thing  that  we  sought. 

Senator  Specter.  The  House  version  did  not  have  RICO  forfeit- 

Mr.  Jensen.  No.  And  it  did  not  deal  with  another  major  issue, 
and  that  is  when  the  assets  are  dissipated,  and  you  do  have  an  abil- 
ity to  seek  forfeiture,  and  you  can  trace  proceeds  and  profits,  and 
get  an  order  about  that,  but  they  have  now  been  dissipated.  Under 
•the  bill  that  we  suggested,  you  could  go  after  substitute  assets,  and 
that  is  not  a  part  of  the  bill  that  was  passed.  Those  are  very  major 
portions  of  the  Department's  position  that  were  not  within  the  bill. 

Mr.  Giuliani.  Mr.  Chairman,  it  was  part  of  the  bill  that  was 
passed  by  the  Senate,  or  favored  by  this  committee,  essentially  Sen- 
ator Biden's  version  of  it  that  we  supported,  and  the  provisions 
that  Mr.  Jensen  mentioned  were  not  part  of  the  bill  that  eventual- 
ly passed  in  the  Congress. 

Senator  Specter.  You  may  proceed. 

Mr.  Walker.  In  addition  to  the  direct  expenses  of  forfeiture,  the 
forfeiture  funds  would  also  provide  for  payment  of  compensation  to 
informants.  For  example,  under  the  existing  section  619  of  the 
Tariff  Act,  a  Treasury  informant  whose  information  leads  to  a  seiz- 
ure and  forfeiture  may  receive  25  percent  of  the  net  amount  recov- 
ered, not  to  exceed  $50,000.  The  $50,000  maximum  amount,  estab- 
lished by  law  in  1935,  long  before  the  era  of  multimillion-dollar 
drug  deals  accompanied  by  gangland  slayings  of  suspected  inform- 
ants, is  no  longer  adequate  for  this  purpose.  This  bill  would  in- 
crease the  maximum  amount  threefold. 

Part  D  of  title  IV  is  of  particular  interest  to  Treasury  and  the 
U.S.  Customs  Service.  This  part  would  amend  the  Tariff  Act  of 
1930  to  appreciably  streamline  the  procedures  for  seizure  and  civil 
forfeiture  of  property  under  the  customs  laws.  One  change  would 
make  administrative  forfeiture  proceedings  available  in  any  forfeit- 
ure involving  conveyances  used  to  transport  illicit  drugs,  without 
limitation  as  to  the  value  of  the  conveyance. 

It  is  clear,  on  the  other  hand,  that  administrative  forfeiture  is 
far  less  costly  and  time-consuming,  both  for  the  Government  and 
for  interested  parties.  This  bill  would  accordingly  extend  its  appli- 


cability  in  two  additional  ways.  First,  administrative  forfeiture 
could  be  used  for  any  seized  merchandise  for  which  importation  is 
prohibited,  without  regard  to  value. 

Second,  for  all  other  property,  it  could  be  used  if  the  value  of  the 
seized  property  did  not  exceed  $100,000.  I  want  to  stress  that  the 
rights  of  legitimate  claimants,  including  lienholders,  would  in  no 
way  be  infringed  by  these  legislative  changes.  Interested  parties 
would  retain  the  right  to  have  the  ownership  of  the  property  judici- 
ally determined,  which  they  could  exercise  by  merely  posting  a 
bond  and  thus  requiring  the  Government  to  initiate  a  judicial  for- 
feiture proceeding. 

Taken  together,  these  legislative  changes  in  the  criminal  and 
civil  forfeiture  laws  would  increase  the  efficiency  of  the  forfeiture 
process,  conserve  judicial  resources,  promote  overall  Federal  law 
enforcement,  and  contribute  to  better  law  enforcement  at  the  State 
and  local  level.  Most  significantly,  they  would  provide  strong  new 
sanctions  to  counter  the  menace  of  drug  trafficking  and  the  crimes 
related  to  it. 

Mr.  Chairman,  turning  to  the  currency  violations  under  the 
Bank  Secrecy  Act,  which  Treasury  is  vitally  interested  in,  I  would 
like  to  address  the  legislative  changes  proposed  by  title  XII  of  the 

As  you  know,  Mr.  Chairman,  the  enforcement  of  currency  report- 
ing requirements  under  the  Bank  Secrecy  Act  is  critical  to  this  Na- 
tion's battle  against  drug  trafficking  and  organized  crime. 

As  I  testified  last  March  15,  before  the  Subcommittee  on  Investi- 
gations of  the  Senate  Governmental  Affairs  Committee,  the  track- 
ing of  unusual  cash  flows  that  is  made  possible  by  the  act's  report- 
ing requirements  frequently  leads  to  the  identification  and  prosecu- 
tion of  large  criminal  organizations.  However,  as  I  also  indicated  at 
that  time.  Treasury's  experience  in  the  enforcement  of  the  act  has 
pointed  to  the  need  to  strengthen  some  of  its  provisions.  This  bill 
responds  to  that  need  and  I  believe  that  the  revisions  it  proposes 
will  overcome  many  of  the  statutory  weaknesses  that  currently  are 
allowing  some  transactions,  particularly  international  transactions, 
to  go  unreported. 

First,  the  revisions  contained  in  title  XII  of  this  bill  will  raise  the 
criminal  penalty  for  willful  violation  of  domestic  currency  report- 
ing requirements  from  the  present  misdemeanor  level  to  the  felony 
level,  with  an  authorized  5-year  imprisonment  and  $50,000  fine.  We 
believe  that  this  level  of  punishment  is  appropriate  given  the  seri- 
ousness of  these  offenses  and  their  established  relationship  to  drug 

The  second  change  would  amend  the  Act  to  provide  that  an  at- 
tempt to  transport,  as  well  as  the  actual  transportation  of  unre- 
ported currency  or  monetary  instruments  into  or  out  of  the  United 
States,  would  be  a  violation  punishable  under  title  31.  This  amend- 
ment would  clarify  an  uncertainty  in  existing  law  that  has  caused 
a  few  courts  to  conclude  that  the  currency  or  monetary  instru- 
ments must  physically  be  outside  of  the  United  States  before  the 
law  is  violated.  By  that  time,  the  offender  is  beyond  our  jurisdic- 
tion and  hence  not  subject  to  Federal  arrest  authority.  Another 
amendment  would  raise  the  amount  covered  by  the  reporting  re- 
quirement for  importation  and  exportation  of  currency  and  mone- 


tary  instruments  from  $5,000  to  $10,000.  This  amendment  will  ease 
the  reporting  requirement  on  legitimate  international  travelers 
without  adversely  affecting  the  detection  of  criminal  activity. 

Title  XII  of  this  bill  revises  the  search  provisions  of  the  Bank  Se- 
crecy Act  to  authorize  customs  officers  to  conduct  a  warrantless 
search  of  any  person,  vehicle,  or  container  entering  or  leaving  the 
United  States,  if  the  officer  has  reasonable  cause  to  believe  cash  or 
monetary  instruments  are  being  transported  without  the  filing  of 
required  reports.  While  this  authority  is  available  for  inbound 
border  searches  and  for  outbound  border  searches  involving  mer- 
chandise, most  courts  have  not  extended  it  to  cover  outbound 
searches  incident  to  suspected  currency  violations. 

There  are  several  other  important  amendments  proposed  in  title 
XII.  One  of  them  would  authorize  the  payment  of  awards  for  per- 
sons who  provide  information  that  leads  to  a  fine,  civil  penalty,  or 
forfeiture  under  the  currency  reporting  laws.  The  amount  is  limit- 
ed to  one-fourth  of  any  recovery  and  may  not  exceed  $150,000. 
While  this  may  seem  to  be  a  high  maximum  amount,  it  has  to  be 
viewed  in  light  of  the  huge  amounts  of  currency  typically  involved 
in  these  cases. 

Mr.  Chairman,  I  might  just  report  that  as  I  was  coming  up  here 
today  we  were  informed  that  as  a  part  of  Operation  Greenback 
down  in  south  Florida,  our  agents  had  seized  $4  million.  This  gives 
you  some  idea  of  the  magnitude  of  the  currency  involved  in  these 

Senator  Specter.  Mr.  Walker,  I  would  like  to  interrupt  you  for  a 
minute,  if  I  may,  before  you  proceed.  I  am  going  to  have  to  depart 
here  in  just  a  minute.  But  one  question  that  I  would  like  to  broach 
with  you  this  morning  is  the  subject  of  the  drug  coordinator— part 
of  the  legislative  package  passed  by  the  Congress  last  year— the 
principal  reason  for  the  President's  veto  of  the  seven  part  package. 

I  start  by  expressing  my  appreciation  to  you  for  your  cooperation 
in  analyzing  that  with  me,  and  others  last  year,  on  behalf  of  the 
Treasury  Department. 

My  question  is.  How  are  things  going  now  with  respect  to  overall 
coordination  of  the  attack  on  the  drug  problem,  as  seen  from  the 
perspective  of  the  Treasury  Department? 

Mr.  Walker.  Mr.  Chairman,  I  feel  that  the  coordination  today  is 
better  than  it  has  ever  been.  I  might  report  that 

Senator  Specter.  How  is  the  coordination  implemented? 

Mr.  Walker.  Since  we  talked,  the  President  announced  the  es- 
tablishment of  the  National  Narcotics  Border  Interdiction  System, 
headed  by  the  Vice  President,  and  under  the  leadership,  on  an 
operational  basis,  of  Admiral  Murphy,  who  is  the  Vice  President's 
Chief  of  Staff  That  office  is  now  providing  senior  executive  super- 
vision and  coordination  of  the  interdiction  effort  that  Treasury  is 
so  vitally  interested  in.  This  includes  the  coordination  of  the  re- 
sources of  the  Defense  Department,  the  Coast  Guard  and  the  Cus- 
toms Service,  as  well  as  Justice  agencies.  The  Department  of  State 
is  also  respected  in  this  effort. 

Senator  Specter.  Does  the  situation  ever  arise  where  one  depart- 
ment, as  a  practical  matter,  has  to  tell  another  department  what  to 
do,  or  issue  an  order,  or  have  some  controversy  between  two  major 
departments  working  on  the  drug  problem? 

25-694   0-84 


Mr.  Walker.  Well,  there  are  circumstances,  obviously,  where  de- 
partments may  differ,  but  the  mechanism  that  is  in  place  right 
now  is  to  use  the  President  himself,  as  his  authority  has  been  dele- 
gated down  to  the  Vice  President,  and  through  him  to  Admiral 
Murphy,  to  resolve  disputes  of  this  kind.  So  far  we  have  not  had 
any  problems  with  this. 

Senator  Specter.  Thank  you  very  much. 

Senator  Biden  [presiding].  Thank  you. 

I  have  questions.  If  you  want  to  complete  your  testimony  at  this 
point,  please  continue. 

Mr.  Walker.  I  think  I  can  summarize  it  pretty  quickly. 

Other  changes  in  the  Bank  Secrecy  Act  would  add  currency  vio- 
lations to  the  list  of  racketeering  activities  under  the  Racketeer-In- 
fluenced and  Corrupt  Organizations  Act,  or  RICO.  This  result 
would  allow  these  offenses  to  serve  as  the  predicate  for  a  RICO 
prosecution.  The  final  change  would  add  currency  offenses  to  the 
list  of  crimes  for  which  a  court  order  authorizing  electronic  surveil- 
lance may  be  obtained.  This  amendment  recognizes  that  currency 
laws  are  frequently  violated  by  persons  involved  in  major  crimes, 
but  also  that  the  substantive  nature  of  these  crimes  is  frequently 
unknown  when  the  investigation  commences. 

Mr.  Chairman,  each  of  these  amendments  to  the  laws  governing 
currency  and  foreign  transactions  will,  we  believe,  improve  the 
tools  of  our  enforcement  effort  against  drug  trafficking  and  orga- 
nized crime  and  complement  the  increased  resources  we  are  devot- 
ing to  this  effort 

Mr.  Chairman,  on  another  issue,  and  one  that  is  critical  to  all 
Federal  law  enforcement,  the  Treasury  Department  strongly  sup- 
ports the  amendments  that  title  XIII  of  this  bill  would  make  in  the 
Federal  Tort  Claims  Act.  Under  present  law  as  articulated  in  the 
Bivens  case,  a  Federal  law  enforcement  official  can  be  held  person- 
ally liable  for  conduct  occurring  within  the  scope  of  his  office  or 
employment  that  later  turns  out  to  be  a  violation,  even  though  the 
official  believed  his  conduct  to  be  permissible. 

Basically,  these  amendments  would  substitute  the  U.S.  Govern- 
ment as  the  defendant  in  a  lawsuit  against  a  law  enforcement 
agent  or  officer  for  a  constitutional  tort  alleged  to  have  been  com- 
mitted by  the  agent  or  officer  acting  within  the  scope  of  his  office 
or  employment. 

'-■  The  threat  of  personal  liability  today  hangs  like  a  Damocles 
sword  over  the  heads  of  law  enforcement  officials  and  has  inhibited 
them  from  taking  an  aggressive  approach  in  enforcing  the  law.  The 
fact  that  these  suits  often  turn  out  to  lack  merit  does  not  affect  the 
need  for  this  legislation;  as  much  as  the  threat  of  liability,  it  is  the 
threat  of  the  lawsuit  itself,  with  all  of  its  attendant  time,  expense 
and  uncertainty,  that  inhibits  proper  enforcement  conduct. 

Title  XIII  would  make  the  United  States  liable  for  all  constitu- 
tional torts  committed  by  its  employees.  Successful  litigants  would 
be  compensated  with  minimum  liquidated  damages  of  $1,000  or,  in 
the  case  of  continuing  torts,  $100  per  day,  up  to  $15,000.  Litigants 
would  also  be  entitled  to  any  actual  damages  that  they  could  estab- 
lish. In  the  litigation,  the  United  States  would  have  available  to  it 
all  of  the  defenses  that  would  have  been  available  to  the  employee. 


Even  with  governmental  liability  for  these  torts,  deterrence 
against  the  commission  of  constitutional  torts  of  the  type  subject 
today  to  Bivens  suits  would  remain.  Not  only  would  there  be  the 
exposure  of  the  public  proceedings,  but  disciplinary  action  would 
also  be  triggered  under  the  provisions  of  this  bill. 

In  all,  the  mechanism  that  title  XIII  would  put  into  place  would 
uphold  the  rights  of  litigants  and  deter  unconstitutional  conduct. 
At  the  same  time,  it  would  insure  that  law  enforcement  officers  are 
not  unfairly  and  unduly  inhibited  in  performing  their  official 

Mr.  Chairman,  Treasury  is  also  vitally  interested  in  the  provi- 
sions of  the  bill  set  forth  in  title  XV.  I  will  not  go  into  them  in 
great  detail  now,  but  these  deal  with  the  question  of  forged  en- 
dorsements of  Federal  securities,  bank  fraud,  bank  bribery,  and  re- 
ceipt of  stolen  bank  property. 

Mr.  Chairman,  again,  I  appreciate  the  opportunity  to  appear 
before  you  and  members  of  this  committee  to  express  Treasury's 
strong  support  for  passage  of  the  Comprehensive  Crime  Control 
Act  of  1983.  It  is,  we  believe,  a  legislative  package  that  will 
strengthen  Treasury  law  enforcement  as  it  provides  long-needed 
remedies  for  Federal  law  enforcement  in  general. 

Senator  Biden.  Thank  you  very  much. 

[The  prepared  statement  of  John  Walker  follows:] 


Prepared  Statement  of  John  M,  Walker,  Jr. 

Mr-  Chairman  and  Members  of  the  Subcommittee: 

Thank  you  for  affording  me  the  opportunity  to  present  the 
VIEWS  of  the  Treasury  Department  on  the  proposed  Comprehensive 
Crime  Control  Act  of  1985.  From  Treasury's  perspective,  this 
proposed  legislation  would  provide  urgently  needed  reforms  that 


testimony  today,  i  will  concentrate  on  those  provisions  that  are 
of  particular  importance  to  the  enforcement  ffforts  of  the  treasury 
riepartment,  including  those  in  which  justice  and  treasury  currently 
share  joint  law  enforcement  responsibilities- 

This  bill  would  strengthen  Treasury  law  enforcement  by  stream- 
MENT against  currency  violations  UNDER  THE  BANK  SECRECY  ACT, 

mitigating  liability  of  law  enforcement  officers  under  the  federal 
Tort  Claims  Act  and  improving  enforcement  against  forged  endorse- 
ments OF  Federal  securities,  bank  fraud,  bribery  of  bank  officers, 

and  receipt  of  stolen  bank  property-   I  WILL  ADDRESS  EACH  OF  THESE 

topics  separately- 

Criminal  and  Civil  Forfeiture 
By  revising  the  laws  governing  criminal  and  civil  forfeiture, 


forfeiture  authority  will  greatly  assist  the  operations  of  the 
'Irug  and  Organized  Crime  Task  Forces  announced  by  the  president 
LAST  October-  Seizure  of  the  ill-gotten  proceeds  of  drug  traffick- 

financial  base  for  further  drug  dealing- 

Today,  criminal  forfeitures  can  occur  only  when  the  enterprise 
requirements  under  the  racketeer- influenced  and  corrupt  organiza- 
TIONS AND  THE  Continuing  Criminal  Enterprise  statutes  are  met- 


Title  IV  of  the  rill  would  strengthen  the  criminal  forfeiture 

power  ry  causing  it  to  rf  triggered  ry  a  single  felony  drug  offensf. 


provisions  of  the  internal  revenue  co^f ,  that  arf  designed  to 
deprive  drug  traffickers  of  the  assets  they  need  to  continue  their 
illicit  operations- 

Additionally,  several  new  provisions  will  rring  greater 
effectiveness  to  the  federal  criminal  forfeiture  process  in 
general-  these  include  new  authority  for  courts  to  enter  restrain- 
ing orders  against  the  transfers  of  forfeitable  assets  during  the 


order  may  be  insufficient,  such  as  where  property  is  easily  moved 
or  concealed,  the  government  would  re  empowered  to  obtain  a  warrant 
authorizing  seizure  of  the  property-  courts  would  also  be  able  to 
void  transfers  that  have  already  occurred  and,  in  some  circum- 
stances, order  the  forfeiture  of  substitute  assets - 

The  bill  would  also  improve  the  method  of  payment  for  expenses 


Treasury-  In  the  Justice  Department,  the  Drug  Assets  Forfeiture 
Fund  would  contain  the  proceeds  from  forfeitures  of  drug-related 
assets-  In  Treasury,  the  Customs  Forfeiture  Fund  would  contain  the 


Fiscal  Year,  any  amount  in  the  funds  that  exceeds  the  appropriated 
amounts  for  that  year  would  be  deposited  in  the  i^enepal  f^und  of  the 
U-S-  Treasury- 

The  establishment  of  these  funds  would  allow  the  f^OVERNMENT  TO 



Customs  Service,  the  present  procedure  is  harmful  to  its  law 
enforcement  mission  since  forfeiture  expenses  tend  to  rfduce  funds 


present  procedure,  since  it  entails  separate  accounting  for  each 
individual  forfeiture,  is  inefficient  and  unnecessarily  burdensome- 
Under  the  new  funds.  Justice  and  Treasury  would  avoid  these  needless 
complications;  yet  overall  accountability  to  the  congress  would  be 
retained,  through  the  annual  reporting  reouirfments  provided  by  the 


accountability  to  the  congress  reflect  the  recommendations  made  in 
the  recent  draft  rao  study  on  the  disposition  of  property  seized  by 
Federal  law  enforcement  agencies- 

In  addition  to  the  direct  expenses  of  forfeiture,  the  forfeiture 


informant  whose  information  leads  to  a  seizure  and  forfeiture  may 
receive  25%  of  the  net  amount  recovered,  not  to  exceed  $50,000- 
The  $50,000  maximum  amount,  established  by  law  in  1935,  long  before 


PURPOSE-  This  bill  would  increase  the  maximum  amount  threffold- 

Other  forfeiture  provisions  in  the  bill  will  promote  assistance 
by,  and  cooperation  with,  other  Federal,  state,  and  local  law 
enforcement  agencies-  Both  Justice  and  Treasury  would  be  authorized 
TO  transfer  forfeited  property  to  another  Federal  agency  or  to  any 
state  or  local  law  enforcement  agency  that  participated  in  the 













THE  Secretary  of  the  Treasury  to  discontinue  any  forfeiture 


Part  D  of  Title  IV  is  of  particular  interest  to  Trfasury  and 
THE  United  States  Customs  Service-  This  part  would  amend  thf  Tariff 
Act  of  1<i?0  to  appreciably  streamline  the  procedures  for  seizure 
and  civil  forfeiture  of  property  under  the  Customs  laws-  One 
change  would  make  administrative  forfeiture  proceedings  available 
IN  any  forfeiture  involving  conveyances  used  to  transport  illicit 
drugs,  without  limitation  as  to  the  value  of  the  conveyancf- 

Under  present  law,  any  property  seized,  including  conveyances 
used  in  drug  trafficking,  must  be  disposed  of  through  judicial 
forfeiture  if  the  value  of  the  property  is  greater  than  $in,nr)0- 
Because  the  number  of  seizures  of  conveyances  by  Customs  has 
increased  exponentially  in  recent  years,  this  limitation  has  led  to 

AN  enormous  backlog  OF  JUDICIAL  FORFEITURE  CASES-   It  HAS  ALSO 

Fiscal  Year  1982,  Customs  seized  approximately  6,70n  conveyances, 





property  did  not  exceed  $100,000.  1  want  to  stress  that  the  rights 
of  legitimate  claimants,  including  lienholders,  would  in  no  way  be 
infringed  by  these  legislative  changes-  interested  parties  would 
retain  the  right  to  have  the  ownership  of  the  property  judicially 
determined,  which  they  could  exercise  by  merely  posting  a  rond  and 
thus  requiring  the  government  to  initiate  a  judicial  forfeiture 

This  bill  would  also  change  the  bond  requirement,  to  discourage 


Government  of  pursuing  a  judicial  forfeiture-  The  present  bond 

AMOUNT,  $250,  dates  BACK  TO  18'»'4,  WHEN  IT  REPRESENTED  TWO-AND-A-HALF 

establish  a  bond  amount  of  the  lesser  of  $5000  or  10?!  of  the  value 
of  the  property,  but  in  no  event  less  than  $250-  however,  it  should 
be  noted  that  under  existing  customs  procedures,  persons  upon  whom 
the  bond  requirement  would  pose  an  economic  hardship  may  request 
waiver  of  the  bond  by  completing  an  affidavit  on  financial  inability- 
customs  would,  of  course,  retain  this  procedure  under  the  new  bond 

CuRRENCY  Violations  Under  the  Bank 
Secrecy  ^ 

i  would  now  like  to  address  the  legislative  changes  proposed 
BY  Title  XII  of  this  bill-  Mr-  Chairman,  as  you  know,  the  enforce- 
ment OF  currency  reporting  requirements  under  the  Bank  Secrecy  Act 
IS  critical  to  this  nation's  battle  against  drug  trafficking  and 
organized  crime-  As  I  testified  last  March  15,  before  the  Subcom- 
mittee ON  Investigations  of  the  Senate  Governmental  Affairs  Committee, 
the  tracking  of  unusual  cash  flows  that  is  made  possible  by  the 
Act's  reporting  requirements  frequently  leads  to  the  identification 




PROVISIONS-  This  bill  responds  to  that  need  and  I  belifve  that 


First,  the  revisions  contained  in  Title  Xll  of  this  bill  will 



FROM  $5,000  TO  $10,000-  This  amendment  will  ease  the  reporting 
requirement  on  legitimate  international  travelers  without  adversely 
affecting  the  detection  of  criminal  activity- 

tltle  xii  of  this  bill  revises  the  search  provisions  of  the 
Bank  Secrecy  Act  to  authorize  Customs  officers  to  conduct  a  warrant- 

THE  United  States,  if  the  officer  has  reasonable  cause  to  believe 



There  are  several  other  important  amendments  proposed  in 
Title  Xll.  One  of  them  would  authorize  the  payment  of  awards  for 
persons  who  provide  information  that  leads  to  a  fine,  civil  penalty, 
or  forfeiture  under  the  currency  reporting  laws.  The  amount  is 

LIMITED  TO  one-fourth  OF  ANY  RECOVERY  AND  MAY  NOT  EXCEED  *150,000. 

While  this  may  seem  to  pe  a  high  maximum  amount,  it  must  be  viewed 
in  light  of  the  huge  amounts  of  currency  typically  involved- 
Furthermore,  it  must  be  remembered  that  informants  on  money 
laundering  operations  take  a  great  personal  risk  in  providing 


Act,  OR  RICO,  The  result  would  allow  these  offenses  to  serve  as 


f^R,  Chairman,  each  of  these  amendments  to  the  laws  governing 


complement  the  increased  resources  we  are  devoting  to  this  effort, 
Liability  under  the  Federal  Tort  Claims  Act 
Hr.  Chairman,  on  another  issue,  one  that  is  critical  to 
all  Federal  law  enforcement,  the  Treasury  Department  strongly 


IN  THE  Federal  Tort  Claims  Act,  I'nder  present  law  as  articulated 


office  or  employment  that  later  turns  out  to  be  a  constitutional 
violation,  even  though  the  official  believed  his  conduct  to  be 

Basically,  these  amendments  would  substitute  the  United  States 


Government  as  the  defendant  in  a  lawsuit  against  a  law  enforcement 
agent  or  officer  for  a  constitutional  tort  alleged  to  have  been 



Title  XIII  would  make  the  United  States  liable  for  all  con- 

would  be  compensated  with  minimum  liquidated  damages  of  $1,000  or, 
in  the  case  of  continuing  torts,  $100  per  day,  up  to  $15,000- 
Litigants  would  also  rf  entitled  to  any  actual  damages  that  they 


available  to  it  all  of  the  defenses  that  would  have  been  available 
to  the  employee-  thus,  the  liability  of  the  united  states  would 
not  be  a  strict  liability  such  as  would,  for  example,  make  the 
United  States  liable  in  every  case  in  which  evidence  is  suppressed 
on  constitutional  grounds-  rather,  the  government  would  be  liable 
only  if  the  conduct  in  question  were  unreasonable  under  the 
circumstances,  including  applicable  constitutional  mandates - 

Even  with  governmental  liability  for  these  torts,  deterrence 
against  the  commission  of  constitutional  torts  of  the  type  subject 
today  to  pivens  suits  would  remain-  not  only  would  there  be  the 
exposure  of  the  public  proceedings,  but  disciplinary  action  would 
also  be  triggered  under  the  provisions  of  this  bill- 



Enforcement  Against  Forged  Fndopsements 
OF  Federal  Securities 

Another  problem  of  concern  to  Treasury  that  this  bill  would 


checks,  bonds,  and  other  Federal  securities-  Title  XIV  would 



these  crimes  must  be  prosecuted  under  section  4^5  of  the  code ,  a 
general  provision  that  does  not  specifically  cover  government 
securities  and  does  not  apply  to  endorsements-  there  are  gaps  in 
the  coverage  of  this  section;  for  example,  it  is  possible  for  a 
thief  to  steal  a  treasury  check  endorsed  by  a  payee,  endorse  his 
own  name,  and  obtain  the  proceeds,  without  violating  section  i^f- 
This  new  legislation,  by  allowing  for  prosecution  of  forged 
endorsements  and  signatures  under  one  section,  would  correct 


under  present  law  has  the  responsibility  for  enforcement  against 

these  offenses - 

Enforcement  Against  Rank  Bribery, 
Bank  Fraud,  and  Receipt  of  Stolen  Rank  Property 

Finally,  this  bill  would  remedy  certain  deficiencies  in  the 

criminal  code  that  pertain  to  crimes  involving  banks-  Treasury 


BY  THE  Comptroller  of  the  Currency-  One  problem  is  that  it  is 


THE  Government  must  resort  to  the  prohibitions  against  embezzlement 




ThE  present  statute  is  UNDULY  COMPLEX  AND  FAILS  TO  COVER  CERTAIN 


In  general,  these  sections  of  the  bill  provide  a  STATUTORY 

basis  to  strengthen  the  prosecution  of  illegal  activities  involving 
Federally-supervised  financial  institutions-  We  believe  these 
reforms  are  necessary  to  ensure  the  continued  integrity  of  thf 
Federal  banking  system- 

Mr.  Chairman,  again,  I  appreciate  the  opportunity  to  appear 
before  you  and  members  of  this  Committee  to  express  Treasury's 
strong  support  for  passage  of  the  Comprehensive  Crime  Control  Act 
of  1983-   It  is  a  legislative  package  that  will  strengthen  Treasury 
law  enforcement  as  it  provides  long-nefded  remedies  for  federal 
law  enforcement  in  general- 


Senator  Biden.  I  do  not  want  to  keep  you  fellows  too  far  beyond 
your  lunch.  I  have  many  questions,  but  I  will  not  take  advantage  of 
the  fact  that  I  am  presiding.  I  will  ask  for  unanimous  consent,  and 
then  grant  it,  so  that  the  series  of  questions,  about  20  or  so  that  I 
have  on  the  Torts  Claims  Act,  forfeiture  and  other  provisions,  may 
be  submitted  for  the  record.  I  would  then  ask  that  you  respond. 

[The  following  was  received  for  the  record:] 


Responses  to  Senator  Biden's  Questions  regarding  Tort  Claijms  Amendments; 
Question  No.  1.  "Tort  Claims  actions  act  against  federal 
employees  for  violations  of  constitutional  rights  have  clearly 
served  as  a  deterrent  to  such  activities.  However,  neither 
federal  employees  or  victims  are  served  by  the  present  system. 
If  financial  liability  is  removed,  how  will  individual  federal 
employees  be  deterred  from  such  activities?" 

Answer.   The  record  developed  during  consideration  of 
this  legislation  demonstrates  that  incidents  of  willful  rights 
violations  are  extremely  rare.   Therefore  it  has  been  generally 
accepted  that  the  deterrence  being  experienced  is  primarily 
deterrence  of  proper  and  needed  governmental  action.   Section 
1305(c)  of  the  bill  provides  that  the  Attorney  General  shall 
forward  correspondence  to  the  head  of  an  employee's  department 
or  agency  for  investigation  or  disciplinary  action  when  the 
actions  of  the  employee  result  in  a  judgment  against  the 
United  States  or- a  settlement  paid  by  the  United  States. 
Through  this  measure  serious  agency  disciplinary  action  may 
be  initiated  against  a  transgressing  federal  employee.   This 
sanction  should  not  be  minimized.   It  can  result  in  penalties 
ranging  from  reprimand  to  demotion  to  permanent  loss  of 
one's  chosen  livelihood.   The  multitude  of  other  sanctions 
available  are  as  follows:   The  proposal  contains  no  immunity 
from  prosecution  for  a  violation  of  federal  criminal  laws, 
particularly  those  concerning  civil  rights.   In  addition 
to  formal  agency  disciplinary  action,  performance  appraisals 
and  scrutiny  by  agency  Inspectors  General  serve  as  deterrents. 
Congressional  oversight  and  the  public  media  also  act  as 
restraints.   Court  challenges  seeking  injunctive  relief  are 
an  additional  check..   Finally,  the  fact  that  an  employee  is 
relieved  of  personal  financial  liability  does  not  mean  that 
his  conduct  is  not  brought  into  serious  question  by  trial 
proceedings  brought  in  a  case  against  the  United  States  as  a 
result  of  his  alleged  wrongdoing.   He  will  still  be  the 


subject  of  a  lawsuit  and,  particularly  if  qualified  immunity 
remains  an  issue,  his  conduct  will  be  the  subject  of  serious 
public  and  governmental  scrutiny  in  the  objective  forum  of 
a  federal  district  court.   While  some  observers  have  ignored 
or  discounted  this  factor,  an  employee's  interest  in  his 
professional  reputation  and  personal  pride  is  a  major  motivat- 
ing factor  with  respect  to  official  conduct.   Thus,  sanctions 
remaining  and  supplemented  by  chapter  XIII  of  S.  829  amply 
deter  official  misconduct  in  the  place  of  what  is  now  a 
futile  damages  remedy. 

Question  No.  2.   "The  House  bill  proposed  a  jury  trial 
against  the  government  with  additional  damages  of  up  to 
$100,000  'if  the  conduct  giving  rise  to  the  tort  claim  was 
undertaken  with  the  malicious  intention  to  cause  a  deprivation 
o£  constitutional  rights  or  with  reckless  disregard  for  the 
plaintiff's  constitutional  rights.'   Doesn't  this  meet  the 
goals  of  the  legislation  by  compensating  victims  and  encourage 
the  government  to  supervise  employees  and  discipline  employees 
who  violate  constitutional  rights?" 

Answer.   It  should  first  be  noted  that  the  phrase  "reckless 
disregard"  has  been  stricken  from  the  House  bill  by  amendment. 
Legislation  of  this  nature  seeks  to  achieve  a  balance  between 
the  compensatory  interests  of  claimants  and  public  resources. 
Moreover,  the  object  of  tort  law  is  to  attempt  to  compensate 
victims  for  losses  they  have  suffered.   With  those  concepts 
in  mind,  an  additional  award  such  as  that  contained  in  the 
House  bill,  which  bears  no  relationship  to  compensation  for 
injury,  seems  illogical  and  unfair  to  the  citizenry  as  a 
whole.   The  possibility  of  an  unfair  windfall  for  the  plaintiff 
exists  that  has  no  reasonable  relationship  to  any  damage 
suffered.   Such  a  provision  will  encourage  many  plaintiffs 
who  have  suffered  virtually  no  injury  to  take  the  chance  in 
lottery  fashion  on  winning  the  bonus  award  by  alleging  malice. 


Thus,  it  is  submitted  that  such  a  provision  is  neither  appropri- 
ate nor  in  the  public  interest. 

Question  No.  3.   "In  the  past,  enactment  of  Tort  Claims 
Act  Amendments  has  been  prevented  by  opposition  to  the  proposal 
that  the  government  be  allowed  to  invoke  the  'good  faith'  defense 
available  to  its  employees  when  sued  as  individuals. 
"What  purpose  will  be  served  by  the  government 
invoking  the  defense  dther  than  reducing  compensa- 
tion to  victims  whose  rights  have  been  violated? 
Won't  the  immunity  reduce  the  level  of  super- 
vision of  employees? 

Isn't  it  likely  that  extending  the  immunity  to 
the  government  will  complice  litigation,  contrary  to 
the  purpose  of  the  admendment  by  requiring  employees 
to  prove  their  good  faith?" 

Answer.  It  is  extremely  important  to  understand  at  the 
outset  that  the  issue  of  qualified  immunity  no  longer  is  one 
of  good  faith.   On  June  24,  1982,  the  Supreme  Court  in  the 

case  of  Harlow  v.  Butterfield, U.S.  ;  50  U.S.L.W.  4815 

eliminated  good  faith  from  the  test  of  qualified  immunity. 
What  remains  is  an  inquiry  into  whether  the  conduct  of  the 
employee  was  objectively  reasonable.   Thus,  the  issue  in  the 
debate  over  the  qualified  immunity  defense  is  whether  the 
government  should  be  entitled  to  show  that  what  its  employee 
did  was  reasonable  under  all  of  the  circumstances.   This  of 
course,  is  the  same  concept  through  which  any  employer  is 
entitled  to  defend  the  actions  of  an  employee  under  the 
doctrine  of  respondeat  superior.   Were  the  defense  to  be 
waived,  the  government  would  face  strict  liability  in  an 
era  of  frequently  vague  and  constantly  shifting  law,  "whara 
monumental  decisions  applied  retroactively  could  subject  the 
government  to  massive  liability  to  tens  of  thousands  of 
persons  for  actions  thought  to  be  perfectly  appropriate  when 
taken,  and  where  complex  legal  doctrines  can  be  tranalat«4 

25-694  0-84-7 


into  day-to-day  operating  instructions  only  with  the  greatest 
dif f iculty--an  absolute  liability  standard  requiring  omniscient 
decisionmaking  would  prove  unworkable."   See,  statement  of 
Loren  A.  Smith  before  the  Subcommittee  on  Administrative 
Practice,  May  26,  1983. 

The  often  glib  response  to  this  argument  is  that  there 
should  always  be  compensation  when  a  right  is  violated.   The 
problem  is  that  both  the  law  and  facts  of  a  given  circumstance 
are  often  terribly  unclear  and  whether  some  right  has  been 
violated  cannot  be  determined  until  a  particular  issue  sifts 
its  way  through  the  courts  years  after  the  fact.   To  quote 
from  recent  testimony  presented  in  the  Senate,  "The  biggest 
misstatement  that  I've  heard  here  today  is  that  a  public 
official  who  is  reasonably  well-versed  on  his  job  knows  what 
the  law  is.   There  is  no  way  anybody  can  know  what  the  law  is 
until  you  finally  count  it  up  in  the  court  of  last  resort — 
where  it  is  a  split  decision,  typically."   Id.   Judge  Jerre 
Williams,  Fifth  Circuit,  United  States  Court  of  Appeals. 

To  put  it  another  way,  were  the  defense  waived,  the 
United  States  would  pay  damages  in  cases  where  courts  determined 
with  20-20  hindsight  that  violations  had  occurred  in  a  difficult 
factual  or  procedural  setting  even  though  the  conduct  or  the 
process  at  the  time  was  properly  motivated  and  eminently 
reasonable . 

In  addition,  it  is  waiver  of  the  defense  rather  than 
preservation  of  it  that. will  reduce  the  level  of  proper 
supervision  of  employees.   Agencies  and  agents  would  hesitate 
to  act  for  fear  of  damages  claims  which  would  reflect  adversely 
upon  them  because  they  would  be  prevented  from  defending 
their  conduct  as  reasonable  in  court.   A  witness  before  the 
Senate  testified  that  the  interest  of  deterrence  of  official 
misconduct  requires  preservation  of  the  qualified  immunity 
defense.   This  is  so  because,  in  a  strict  liability  situation, 
the  actions  of  the  reasonable  employee  will  be  found  just  as 


culpable  as  the  actions  of  the  employee  who  acted  unreasonably. 
Thus,  there  will  be  no  standard  toward  which  an  employee  can 
strive  to  avoid  a  successful  attack  on  his  or  her  reputation 
as  a  public  servant. 

Finally,  elimination  of  the  defense  would  seriously 
detract  from  the  ability  of  the  courts  to  fully  consider 
allegations  of  official  misconduct.   It  is  very  much  in  the 
public  interest  to  have  a  full  ventilation  in  an  objective 
public  forum  of  such  allegations.   If  the  issue  of  the  reason- 
ableness of  the  conduct  of  the  federal  employee  is  declared 
irrelevant  by  eliminating  the  defense,  all  pertinent  facts 
which  impact  on  this  basic  tort  concept  of  reasonableness 
may  be  declared  irrelevajit.   The  effect  would  be  that  the 
public  and  the  Congress  would  never  learn  the  true  merits  of 
the  case  and  that  the  people  of  the  United  States  would  be 
subjected  to  judgment  without  a  full  hearing.   While  pre- 
servation of  the  defense  may  be  viewed  as  a  complicating 
factor  in  litigation,  that  consideration  is  outweighed  by 
the  interest  of  ventilating  the  merits  of  the  contoversies 
that  will  surface.   Moreover,  it  is  clearly  not  in  the  interest 
of  the  United  States  to  streamline  cases  to  the  point  where  the 
United  States  cannot  defend  itself  and  is  reduced  to  the 
position  of  simply  paying  claims.   Finally,  it  must  not  be 
overlooked  that  passage  of  the  current  proposal  intact  will 
enable  the  United  States  to  settle  cases  for  the  first  time 
which  are  premised  upon  a  theory  of  constitutional  rights. 
As  a  result,  a  case  turning  on  the  issue  of  qualified  immunity 
can  be  settled  when  there  is  litigative  risk  to  both  sides. 
Thus,  the  difficult  cases  will  be  disposed  of  much  more  quickly. 



Question  1 

Both  the  bipartisan  Crime  bill,  as  it  passed  the  Senate  on 
September  30,  1982,  and  S.  829,  the  Administration's  bill, 
provide  for  the  creation  of  a  Sentencing  Commission  as  an 
independent  body  in  the  judicial  Branch.   Both  bills  provide  that 
the  President,  after  consultation  with  representatives  consisting 
of  judges,  prosecuting  and  defense  attorneys,  law  enforcement 
officials,  senior  citizens,  victims  of  crime,  and  others 
interested  in  the  criminal  justice  system,  appoint  this 
seven-member  commission.   Do  you  believe  that  judges  should  have 
representation  on  this  commission?   Should  any  sentencing  bill 
specify  that  a  certain  number  of  judges  should  be  chosen  to  sit 
on  the  Sentencing  Commission? 

Answer  to  Question  1 

It  is  important  that  judges  with  federal  sentencing 
experience  participate  in  the  development  of  the  sentencing 
guidelines.   This  participation  should  include  both  membership  of 
current  or  past  federal  judges  on  the  commission  and  active 
participation  by  members  of  the  federal  judiciary,  acting  alone 
or  through  the  Judicial  Conference,  in  the  development  of  the 
guidslines.   Participation  of  judges  is  especially  important  in 
•■■arln9  that  the  sentencing  guidelines  provide  enough  detail  to 
tak*  into  account  commonly  occurring  factors  that  should  affect 
the  sentencing  decision,  while  they  avoid  such  complexity  that 
judges  will  have  difficulty  in  applying  them.   In  addition,  a 
number  of  past  and  current  federal  judges  have  been  very  active 
in  the  sentencing  reform  movement,  and  their  participation  in  the 
guidelines  development  process  should  be  encouraged.   Finally,  it 
is  important  that  the  Federal  judiciary  feel  a  commitment  to 
making  the  guidelines  process  work  well.   This  goal  can,  we 
believe,  be  far  more  readily  achieved  with  membership  of  Federal 
Oommission  than  without  it.   Whether  ths 


legislation  should  specify  that  federal  judges  should  be  on  th« 
Commission,  and,  if  so,  whether  the  legislation  should  state  a 
specific  number  of  federal  judges,  are  questions  on  which  the 
Department  of  Justice  defers  to  the  judgment  of  the  Committee  on 
the  Judiciary. 

Question  2 

Instead  of  establishing  a  Sentencing  Commission  to  develop 
guidelines  for  sentencing,  would  it  be  preferable  to  authorize 
the  Judicial  Conference  of  the  United  States  to  perform  this 

Answer  to  Question  2 

The  Department  of  Justice  strongly  recommends  that  the 
sentencing  guidelines  be  promulgated  by  a  Sentencing  Ccamission 
in  the  Judicial  Branch,  rather  than  by  the  Judicial  Conference  of 
the  United  States,  for  a  number  of  reasons.   First,  a  Sentencing 
Commission,  with  members  appointed  by  the  President  with  advice 
and  consent  of  the  Senate,  will  be  far  more  visible  than  a 
committee  of  the  Judicial  Conference  might  be.   This  visibility 
is  important  to  assure  public  awareness  and  understanding  of  the 
sentencing  guidelines  process.   Second,  promulgation  of  the 
sentencing  guidelines  by  the  Judicial  Conference  would  probably 
be  more  time-consuming  than  promulgation  of  the  guidelines  by  a 
Sentencing  Commission.   The  Judicial  Conference  meets  only  twice 
a  year,  so  that  if  it  had  any  difficulties  with  guidelines 
suggested  by  its  committee,  there  would  be  substantial  delay  in 
resolving  them.   In  addition,  the  fact  that  the  sentencing 
guidelines  would  be  suggested  by  a  committee  of  the  Judicial 
Conference  and  then  promulgated  by  the  Judicial  Conference  would, 
in  and  of  itself,  add  an  additional  layer  to  the  sentencing 
guidelines  development  process.   This  is  not  to  say  that,  as 
noted  in  the  response  to  question  1 ,  it  is  not  important  that  the 
Judicial  Conference  play  a  very  active  role  in  the  guidelines 
proanilgation  process.   Third,  the  Judicial  ConferwMl 


anticipates  that  the  members  of  the  guidelines  drafting  agency 
would  be  part-time,  while  the  Sentencing  Commission  proposal 
recommends  that  the  members  be  full-time.   The  Department  thinks 
that,  at  least  during  the  drafting  of  the  initial  set  of 
guidelines  and  the  first  few  years  of  experience  under  the  new 
guidelines  system,  it  is  very  important  that  the  drafting  agency 
have  members  who  are  able  to  devote  all  their  professional 
energies  to  issues  of  federal  sentencing  policy.   Fourth,  the 
Sentencing  Commission  legislation  contemplates  a  special  staff 
assigned  to  the  Sentencing  Commission  while  the  Judicial 
Conference  proposal  appears  to  contemplate  that  the  staff  for  the 
guidelines  effort  be  drawn  from  the  staffs  of  the  Administrative 
Office  of  the  United  States  and  the  Federal  Judicial  Center.   Any 
guidelines  drafting  agency  would  be  expected,  of  course,  to  draw 
upon  the  expertise  and  background  of  these  staffs,  particularly 
in  the  data  collection,  research,  and  training  areas.   We  do 
think,  however,  that  there  should  be  provision  for  a  staff  that 
can  work  full-time  on  sentencing  matters  without  the  necessity  of 
juggling  other  responsibilities. 

Question  3 

Parole  has  been  referred  to  as  a  "safety  valve"  of  the 
criminal  justice  system,  yet  it  would  be  eliminated  in  the 
sentencing  title  of  the  Administration  bill.   The  bipartisan  bill 
of  last  Congress  authorized  a  defendant  or  the  Bureau  of  Prisons 
to  motion  for  reduction  of  a  long  sentence  after  six  years  and  at 
the  end  of  the  guideline  years.   Do  you  agree  this  safety  net  is 
necessary  if  parole  is  abolished?  What  would  replace  such  a 
"safety  valve"  if  parole  were  abolished? 


Answer  to  Question  3 

It  is  not  necessary  to  retain  the  "safety  valve"  described 
in  the  question  if  parole  is  abolished.   Under  current  law, 
parole  serves  as  a  rudimentary,  one-way  safety  valve  in  a  system 
that  provides  no  standards  whatsoever  for  sentencing  judges  in 
determining  the  appropriate  sentences.   Parole  serves  the 
necessary  function  of  evening  out  widely  disparate  sentences  that 
vary  according  to  factors  other  than  offense  and  offender 
characteristics  that  should  affect  the  sentence.   This  function 
of  the  Parole  Coiranission  is  totally  unnecessary  in  the  sentencing 
guidelines  system.   If  there  is  a  long  sentence  under  the 
proposed  system,  it  would  result  from  the  fact  that  the  offense 
and  offender  characteristics  in  the  particular  case  warranted  a 
high  sentence  and  not  because  a  high  sentence  had  been  imposed 
that  is  not  justified  by  the  facts  of  the  case  —  and  such  a 
sentence  above  the  guidelines  range  would  be  subject  to  appellate 
review  in  any  event. 

The  bill  provides  several  protections  against  unjustifiably 
long  sentences.   First,  a  defendant  who  is  sentenced  above  the 
guidelines  range  that  applies  to  his  case  may  appeal  th^t 
sentence  on  the  ground  that  it  is  unreasonable.   Second,  while  S. 
829  does  not  contain  a  provision  for  extra  review  of  sentences 
that  exceed  six  years,  it  does  provide  for  modification  of  a 
prison  term  in  two  specific  instances.   The  court  may  reduce  any 
term  of  imprisonment  —  not  just  an  unusually  long  one  —  if, 
upon  motion  of  the  Director  of  the  Bureau  of  Prisons,  it  finds 
that  there  are  extraordinary  and  compelling  reasons  to  do  so. 
This  provision  was  included  to  cover  situations,  such  as  terminal 
illness  of  a  prisoner,  that  may  justify  the  reduction  of  a 
sentence  because  of  a  change  in  the  circumstances  that  originally 
justified  imposition  of  a  particular  sentence.   In  addition,  if 
the  Sentencing  Commission  amends  the  sentencing  guidelines 
applicable  to  a  particular  offense  and  in  the  course  of  doing  so 
lowers  the  terms  of  imprisonment  that  apply  for  the  offense,  it 
may  recommend  that  prisoners  already  sentenced  under  the  old 


guidelines  be  given  the  benefit  of  the  sentence  reduction.   Thus, 
for  example,  if  there  were  a  substantial  change  in  the  community 
view  of  the  seriousness  of  an  offense,  such  that  the  Sentencing 
Commission  found  that  a  substantial  reduction  was  appropriate,  it 
could  also  recommend  making  that  reduction  applicable  even  to 
persons  already  incarcerated. 

Because  the  bill  already  provides  one  level  of  appeal  of  a 
sentence,  and  the  two  instances  described  in  which  sentences  may 
be  reduced,  it  is  difficult  to  see  what  other  circumstances  might 
necessitate  the  inclusion  of  a  "safety  valve".   The  original 
sentence  would  have  been  imposed  for  the  purpose  of  incapacita- 
tion, deterrence,  or  punishment,  or  a  combination  of  these, 
purposes  —  purposes  of  sentencing  that  logically  require  a 
determinate  sentence.   Since  the  bill  makes  ample  provision  for 
changing  the  term  of  imprisonment  for  humanitarian  reasons,  it  is 
not  apparent  that  such  a  "safety  valve"  would  be  of  any  real 
value.   It  would,  moreover,  detract  from  the  certainty  and 
determinacy  that  the  new  system  is  designed  to  achieve. 

Question  4 

Some  have  argued  that  the  Parole  Commission  should  be 
retained  along  with  a  Sentencing  Commission.   V7hat  are  your  views 
regarding  retention  of  the  Parole  Commission?  What  is  your 
opinion  of  the  proposal  to  sunset  the  Parole  Commission  5  years 
after  the  bill? 

Answer  to  Question  4 

The  Department  of  Justice  strongly  opposes  the  retention  of 
the  Parole  Commission  except  temporarily  for  purposes  of  setting 
release  dates  for  persons  sentenced  before  the  guidelines  system 
is  in  place.  This  opposition  extends  not  only  to  the  suggestions 
that  the  Parole  Commission  be  retained,  at  least  temporarily,  to 
carry  on  purposes  similar  to  those  under  current  law,  but  also  to 
the  suggestion  of  the  Judicial  Conference  that  the  Parol* 


Conunission  be  retained  to  set  prison  release  conditions  and 
determine  what  sanctions  should  be  applied  to  a  releasee  who 
violates  them. 

The  Justice  Department  is  especially  opposed  to  the 
suggestion  that  the  Parole  Commission  be  retained,  whether 
temporarily  or  not,  for  purposes  of  evaluating  whether  terms  of 
imprisonment  imposed  under  a  sentencing  guidelines  system  are 
appropriate.   The  sentencing  guidelines  will  have  been  issued 
after  public  comment  and  hearings,  and  after  careful 
congressional  scrutiny.   Once  the  guidelines  are  in  place,  a 
sentencing  judge  will  have  to  impose  sentence  in  accordance  with 
the  guidelines  unless  he  finds  that  a  factor  not  adequately 
considered  in  the  promulgation  of  the  guidelines  should  affect 
the  sentence.   If  he  finds  such  a  factor,  he  must  state  specific 
reasons  for  imposing  sentence  outside  the  guidelines,  and  that 
sentence  will  be  subject  to  appellate  review  on  the  grounds  that 
it  was  unreasonable.   Under  such  a  system,  it  is  difficult  to  see 
what  purpose  would  be  served  by  retaining  the  Parole  Commission 
to  review  terms  of  imprisonment.   We  see  no  justification  for 
review  of  a  sentence  by  an  executive  branch  agency,  acting 
outside  public  scrutiny,  second-guessing  the  guidelines  issued  by 
the  Judicial  Branch  after  congressional  scrutiny  or  a  sentence 
outside  the  guidelines  that  was  already  subject  to  appellate 
review.   We  believe  that  retention  of  the  Parole  Commission  in 
such  a  system  could  be  extremely  detrimental  to  the  success  of 
the  guidelines  system.   The  Sentencing  Commission  would  not  know 
whether  to  attempt  to  set  terms  of  imprisonment  according  to  the 
length  of  time  it  found  a  prisoner  should  actually  serve  or 
whether  it  should  recommend  terms  of  imprisonment  that  assumed 
that  most  prisoners  would  be  released  on  their  parole  eligibility 
dates.   In  addition,  there  is  a  substantial  danger  that  the 
Sentencing  Commission  would  create  one  set  of  guidelines 
following  its  views  of  the  purposes  of  sentencing  while  the 


Parole  Conunission  developed  a  different  set  of  guidelines  based 
on  different  views.   Once  the  guidelines  were  in  place,  much  of 
the  current  confusion  as  to  the  role  of  the  judiciary  versus  the 
role  of  the  Parole  Conunission  in  setting  terms  of  imprisonment 
would  continue  under  such  an  approach.   Moreover,  there  would  be 
some  danger  that  sentencing  judges  would  be  reluctant  to  change 
their  sentencing  practices  in  order  to  impose  terms  of 
imprisonment  that  reflected  the  actual  terms  to  be  served  rather 
than  artificially  inflating  the  sentences,  as  occurs  today,  in 
order  to  anticipate  the  actions  of  the  Parole  Commission.   Thus, 
keeping  the  sentencing  guidelines  and  the  parole  system  side  by 
side  could  result  in  substantially  undermining  the  ability  of  the 
sentencing  guidelines  system  to  accomplish  its  purposes. 

The  Department  of  Justice  also  opposes  the  suggestion  of  the 
Judicial  Conference  that  the  Parole  Commission  determine  whether 
a  prisoner  has  earned  good  time  credit  in  prison,  setting  the 
conditions  of  parole  release,  and  determining  the  sanctions  for 
violations  of  release  conditions.   The  Bureau  of  Prisons  today 
determines  whether  prisoners  have  earned  good  time.   We  see  no 
reason  to  change  this,  especially  since  the  Parole  Commission  is 
a  multi-million  dollar  agency  that  is  far  more  cumbersome  than  is 
necessary  to  serve  that  purpose.   Under  S.  668  and  S.  829,  in 
addition,  the  sentencing  judge  determines  the  term  of  supervised 
release  that  will  follow  a  term  of  imprisonment,  if  any,  and  sets 
tlM  conditions  on  that  release.   The  factors  that  go  into  the 
determination  that  a  term  of  supervised  release  will  be  needed, 
and  what  conditions  should  be  imposed  on  that  term,  are  known  at 
the  time  of  sentencing.   There  is  no  reason  to  retain  a  special 
agency  to  set  the  conditions  of  release,  nor  should  the  length  of 
that  term  depend  upon  how  much  good  time  the  defendant  happens  to 
earn.   If  the  term  of  supervised  release  is  entirely  dependent  on 
the  amount  of  good  time  a  prisoner  earns,  the  result  would  often 
be  that  the  person  with  the  worst  behavior  in  prison  would 
receive  the  least  street  supervision  after  his  release  and  the 
person  with  the  best  behavior  would  receive  u   substantial  period 
•f  ■Iwt  aopacvision  even  though  he  probably  would  MOt  ummA   it. 


S.  668  and  S.  829  contemplate,  instead,  that  the  term  and 
conditions  of  supervised  release  following  a  term  of  imprisonment 
will  be  based  on  the  offense  and  offender  characteristics  known  • 
at  the  time  of  sentencing  and  that  no  special  agency  will  be 
required  to  set  good  time  or  the  conditions  of  release.   If  a 
releasee  violates  the  conditions  of  supervised  release,  the 
conditions  of  that  release  can  be  modified  to  provide  a  higher 
level  of  supervision,  including,  if  appropriate,  a  requirement 
-that  the  defendant  undergo  available  medical,  psychiatric,  or 
psychological  treatment,  including  treatment  for  drug  or  alcohol 
dependency,  and,  if  necessary,  remain  in  a  specified  institution. 
Another  possible  condition  of  supervised  release  that  might  be 
added  if  a  defendant's  violations  warrant  it  would  be  a 
requirement  that  the  defendant  reside  at  a  community  correctional 
facility  for  all  or  part  of  the  remaining  term.   In  a  serious 
case,  the  contempt  powers  of  the  court  could  be  used  to  achieve 
further  incarceration  of  the  defendant.   Of  course,  if  the 
release  violation  is  the  commission  of  a  new  offense,  the  fact 
that  the  defendant  was  on  release  at  the  time  the  offense  was 
charged  would  be  taken  into  account  into  the  setting  of  bail 
conditions,  and  the  defendant  could  be  prosecuted  for  the  new 
offense.   Incidentally,  the  Department  would  not  object  to  an 
amendment  specifically  recognizing  that  the  courts  may  use  their 
contempt  powers  in  the  case  of  a  violation  of  an  order  setting 
forth  the  conditions  of  the  term  of  supervised  release. 

Question  5 

Would  the  movement  toward  determinate  sentencing  be  likely 
to  increase  the  already  burgeoning  prison  population? 

Answer  to  Question  5 

The  creation  of  a  determinate  sentencing  system  in  place  of 
an  indeterminate  one  will  not,  in  itself,  cause  an  increase  in 
the  prison  population.   A  determinate  sentencing  system  simply 
results  in  the  imposition  of  terms  of  imprisonment  that  r«fl«et 


the  actual  time  to  be  served  rather  than  being  artificially 
inflated  in  order  to  take  into  account  the  functioning  of  the 
parole  system.   Only  if  sentencing  guidelines  promulgated  under  a 
determinate  sentencing  system  included  higher  terms  of 
Impalsonment  than  are  served  today  or  if  there  was  an  increase  in 
the  number  of  persons  prosecuted  for  offenses  for  which  prison 
terms  are  recommended,  would  there  be  an  increase  in  the  prison 
population.   Sentencing  guidelines  could  as  well  recommend  lower 
terms  of  imprisonment  for  some  offenses  than  are  served  today. 
One  of  the  advantages  of  a  sentencing  guidelines  system  with 
determinate  sentencing  is  that  it  is  possible  for  the  criminal 
justice  system  to  determine  precisely  what  impact,  if  any,  a 
change  in  current  sentencing  practices  or  in  the  mix  of  cases 
prosecuted  will  have  on  the  prison  population  and  on  other 
aspects  of  the  criminal  justice  system.  .  Under  today's  system, 
even  if  we  know  how  many  people  will  be  prosecuted  for  a 
particular  offense,  we  have  no  way  of  knowing  with  any  reasonable 
degree  of  certainty  what  impact  sentencing  a  particular 
percentage  of  those  persons  to  prison  will  have  on  the  prison 
population  since  we  do  not  know  how  long  those  prisoners  will 
actually  serve. 

Question  6 

Some  critics  contend  that  permitting  appellate  review  of 
sentences  by  the  Government  in  cases  in  which  a  sentence  is  more 
lenient  than  that  established  by  the  Guidelines  would  constitute 
double  jeopardy.   Could  you  respond  to  this  allegation? 

Answer  to  Question  6 

Government  appeal  of  sentences,  on  behalf  of  the  public,  is 
clearly  constitutional.   The  Supreme  Court  in  United  States  v. 
DiFrancesco,  449  U.S.  117  (1980)  upheld  the  constitutionality  of 
a  provision  in  current  law  that  permits  a  sentence  imposed  under 
the  dangerous  special  offender  provisions  to  be  increased  upon 
appeal  by  the  United  States.   In  doing  so,  the  Court  said: 


The  double  jeopardy  considerations  that 
bar  reprosecution  after  an  acquittal  do  not 
prohibit  review  of  a  sentence.   We  have 
noted... the  basic  design  of  the  double 
jeopardy  provision,  that  is,  as  a  bar  against 
repeated  attempts  to  convict  with  consequent 
subjection  of  the  defendant  to  embarrassment, 
expense,  anxiety,  and  insecurity,  and  the 
possibility  that  he  may  be  found  guilty  even 
though  innocent.   These  considerations, 
however,  have  no  significant  application  to 
the  prosecution's  statutorily  granted  right 
to  review  a  sentence.   This  limited  appeal 
does  not  involve  a  retrial  or  approximate  the 
ordeal  of  a  trial  on  the  basic  issue  of  guilt 
or  innocence.   Under  S  3576,  the  appeal  is  to 
be  taken  promptly  and  is  essentially  on  the 
record  of  the  sentencing  court.   The 
defendant,  of  course,  is  charged  with 
knowledge  of  the  statute  and  its  appeal 
provisions,  and  has  no  expectation  of 
finality  in  his  sentence  until  the  appeal  is 
concluded  or  the  time  to  appeal  has  expired. 
To  be  sure,  the  appeal  may  prolong  the  period 
of  any  anxiety  that  may  exist,  but  it  does  so 
only  for  the  finite  period  provided  by  the 
statute.   The  appeal  is  no  more  of  an  ordeal 
than  any  government  appeal  under  18  U.S.C.  § 
3731  from  the  dismissal  of  an  indictment  or 
information.   The  defendant's  primary  concern 
and  anxiety  obviously  relate  to  the  determi- 
nation of  innocence  or  guilt,  and  that 
already  is  behind  him.   The  defendant  is 
subject  to  no  risk  of  being  harrassed  and 
then  convicted,  although  innocent.   Further- 
more,  a  sentence  is  characteristically 
determined  in  large  part  on  the  basis  of 
information,  such  as  the  presentence  report, 
developed  outside  the  courtroom.   It  is 
purely  a  judicial  determination,  and  much 
that  goes  into  it  is  the  result  of  inquiry 
that  is  non-adversary  in  nature. 

The  appeal  provisions  in  S.  668  and  S.  829  are  similar  to 

the  appeal  provision  discussed  by  the  Supreme  Court  in  this  long 

quotation.   Under  both  statutes,  it  is  clear  that  the  defendant 

has  no  expectation  of  finality  in  the  sentence,  since  in  both 

instances  the  appeal  rights  of  the  government  are  set  forth 

plainly  in  the  statute.   The  appeal  in  both  instances  is  limited, 

and,  in  fact,  under  S.  668  and  S.  829,  since  the  only  sentence 

that  would  be  appealable  would  be  one  outside  sentencing 

guidelines  or  one  that  involved  an  incorrect  application  of  the 

guidelines,  the  appeal  is  even  more  limited  than  it  is  under  the 

dangerous  special  offender  provisions.   In  neither  case  does  the 

limited  appeal  involve  a  re-trial  or  approximate  the  ordeal  of  a 

trial  on  the  basic  issue  of  guilt  or  innocence,  and  the  appeal 

would  be  essentially  on  the  record  of  the  sentencing  court. 


Those  who  question  whether  there  is  a  double  jeopardy 
problem  with  the  appellate  review  of  sentence  at  the  instigation 
of  the  government  base  their  argument  on  the  Supreme  Court 
decision  in  Bullington  v.  Missouri,  451  U.S.  430  (1981) ,  a  case 
that  involves  the  sentencing  proceeding  under  a  death  penalty 
statute  in  Missouri.   In  that  case,  the  jury,  in  a  proceeding 
separate  from  the  trial  of  the  defendant,  found  that  the 
prosecution  did  not  prove  beyond  a  reasonable  doubt,  as  required 
by  the  statute,  that  there  were  aggravating  factors  in  the  case 
that  had  to  exist  before  the  death  penalty  could  be  imposed.   The 
Supreme  Court  found  that,  because  of  the  special  bifurcated 
procedure,  the  fact  that  the  government  was  charged  with  proving 
aggravating  factors  beyond  a  reasonable  doubt,  and  the  special 
nature  of  a  death  sentence,  that  the  jury  had  in  effect  acquitted 
the  defendant  of  the  aggravating  factors  that  were  necessary  for 
imposition  of  a  death  sentence.   The  court  was  very  careful  to 
distinguish  the  proceedings  from  the  normal  sentencing  hearing 
situation,  and  we  are  satisfied  that  the  case  does  not  cast  any 
doubt  at  all  on  the  constitutionality  of  government  appeal  of 
sentences  in  ordinary  cases. 

Question  7 

S.  829  requires  the  Sentencing  Commission  to  impose  a 
substantial  term  of  imprisonment  for  so  called  "career 
criminals,"  those  who  have  two  or  more  prior  convictions  for 
felonies  committed  on  different  occasions.   Will  such  a  practice 
exacerbate  the  problem  of  overcrowding  in  prisons  and  jails?   Are 
two  convictions  too  few  for  this  purpose?  Would  it  alleviate  the 
problem  if  the  number  of  convictions  were  revised  to  three? 

Answer  to  Question  7 

This  provision,  in  itself,  should  not  have  an  appreciable 
impact  on  the  problem  of  overcrowding  in  prisons  and  jails.   In  a 
recent  study  conducted  for  the  Department  of  Justice  using  almost 


6,000  federal  cases,  the  prior  record  of  the  defendant,  using  a 
single  period  of  incarceration  of  a  year  or  more  as  the 
criterion,  was  a  strong  predictor,  for  almost  every  felony 
studied,  of  both  the  judge's  decision  to  incarcerate  an  offender 
and  the  length  of  the  period  of  incarceration.   It  was  not  a 
strong  predictor  that  a  judge  would  incarcerate  a  person 
convicted  of  homicide  because  the  offense  is  so  serious  that  most 
offenders  are  incarcerated  whether  they  have  a  record  or  not, 
although  it  was  still  a  strong  predictor  of  the  length  of  a 
prison  term.   For  the  offenses  of  bank  robbery,  drug  trafficking, 
forgery,  bank  embezzlement,  false  claims,  mail  fraud,  and  a 
random  selection  of  other  offenses,  the  existence  of  a  criminal 
history  was  a  strong  predictor  of  a  decision  to  incarcerate,  and 
for  those  offenses  plus  homicide  and  tax  fraud,  it  was  a  strong 
predictor  of  the  length  of  the  term  of  imprisonment.   See  INSLAW, 
Inc.,  and  Yankelovich,  Skelly,  and  White,  Inc.,  Federal 
Sentencing;  Toward  a  More  Explicit  Policy  of  Criminal  Sanctions, 
pp.  11-34  to  11-35  (1981) .   Since  the  rate  of  incarceration  of  a 
person  convicted  of  a  felony  who  has  previously  been  incarcerated 
for  only  one  felony  is  already  quite  high,  it  does  not  appear 
that  the  provision  in  the  bill  will  have  much  impact  on  that 
rate.   Instead,  the  sentencing  guidelines  system  should  result  in 
a  more  rational  pattern  than  exists  today  in  determining  the 
amount  of  time  that  a  defendant  is  to  be  imprisoned  in  light  of 
his  criminal  record. 


Responses  to  Organized  Crime  and  Task  Force  Questions 

1.  Direct  funding  in  FY  84  for  the  Treasury  Drug  Task  Force 

Funding  requested  for  FY  1984  by  the  Administration  for  the  Task 
Force  initiative  provides  for  full-year  funding  for  the  program.   In 
FY  1984,  the  Administration  is  requesting  funds  in  the  OCDE  appro- 
priation totalling  1,130  staff  and  $105,949,000  to  reimburse 
components  of  the  Department  of  Justice  for  participation  in  Drug 
Task  Force  activities.   Funds  totalling  500  positions  and 
$32,867,000  to  provide  for  Department  of  the  Treasury  participation 
in  the  Drug  Task  Forces  are  requested  as  direct  appropriations  to 
the  agencies  involved — the  Internal  Revenue  Service,  the  U.  S. 
Customs  Service,  and  the  Bureau  of  Alcohol,  Tobacco  and  .Firearms. 

Further,  the  Task  Force  management  structure  for  each  of  the  12 
Task  Force  regions  and  the  districts  within  each  region  is  in  place 
and  functioning.   By  September  1,  1983,  the  Task  Forces  will  be 
totally  staffed  by  the  prosecutors,  agents  and  support  personnel 
proposed  in  the  FY  83  budget. 

With  the  management  and  operational  structures  in  place,  the 
Attorney  General  will  continue  to  have  full  responsibility  for  the 
Organized  Crime  Drug  Enforcement  effort  and  determine  the  level  of 
participation  required  from  the  Department  of  the  Treasury.   The 
Drug  Task  Force  effort  to  date  has  been  marked  by  the  utmost  degree 
of  cooperation  among  the  participating  agencies.   Because  of  this 
shared  commitment  to  the  success  of  the  program,  the  participation 
levels  established  by  the  Attorney  General  for  Treasury  enforcement 
operations  could  be  funded  from  the  Treasury  appropriation  (once  the 
Task  Forces  have  been  established). 

2.  How  many  cabinet  councils,  legal  policy  committees,  working 
groups,  etc.,  are  you  on  that  have  been  set  up  by  this 
Administration  to  "direct"  the  federal  effort  against  drug  abuse 
and  organized  crime? 

The  purpose -of  these  councils,  committees,  groups,  etc.,  is  to 
provide  mechanisms  for  senior  officials  of  the  Administration  to 
improve  the  coordination  and  efficiency  of  federal  law  enforcement 
efforts,  with  particular  emphasis  on  drug-related  crime.   For 
example,  this  has  been  accomplished  through  the  establishment  of  the 
Cabinet  Council  on  Legal  Policy,  which  is  chaired  by  the  Attorney 
General  and  whose  membership  includes  all  Cabinet  officers  with 
responsibility  for  narcotics  law  enforcement.   Working  through  the 
Cabinet  Council,  the  White  House  Office  on  Drug  Policy  is  an  inte- 
gral part  of  the  process  by  which  a  comprehensive  and  coordinated 
narcotics  enforcement  policy  is  carried  out. 

3.  Which  of  these  groups  has  the  ultimate  authority  to  direct 
federal  drug  control  efforts? 

There  is  no  single  group  or  agency  that  has  the  ultimate 
authority  to  direct  federal  drug  control  efforts.   The  drug 
problem  facing  America  today  cannot  be  address  by  a  single  agency 
or  prograa  ranging  from  education  to  prosecution.   Therefore,  this 
Administration's  drug  control  efforts  covers  a  broad  range  of 
Initiatives  and  involves  a  number  of  diverse  agencies  and 
department,  requiring  coordination  at  the  cabinet  and  senior 
official  levels. 

4.  To  what  extent  are  the  Organized  Crime  and  Drug  Enforcement  Task 
Forces  modeled  after  the  South  Florida  Task  Force,  and  how  are  the 
two  different? 

The  12  Organized  Crime  Drug  Enforcement  Task  Forces  evolved  from 
tha  South  Florida  experience.   As  in  the  South  Florida  effort,  the 
12  Crug  Taak  Forces  are  designed  to  have  specifically  dedicated 


attorneys,  agents  and  support  staff  available  to  invettigate  and 
prosecute  maior  drug  traffickers  and  drug  trafficking  organizations. 
The  12  Drug  Task  Forces  are  different  in  two  principal  ways:   first, 
the  12  Drug  Task  Forces  add  new  resources  to  the  federal  drug 
enforcement  effort;  and  second,  the  primary  enforcement  techniques 
will  be  long  term,  complex  investigations  rather  than  interdiction. 

NNBIS  is  designed 
agencies  with  existing 
interdiction  of  sea-bo 
narcotics.  As  a  resul 
duties  of  the  regional 
Department  of  Justice, 
activity  originating  o 
United  States,  and  wil 
and  arrests  of  persons 

to  coordinate  the  work  of  those  federal 

responsibilities  and  capabilities  for 
rne,  air-borne  and  cross-border  importation  of 
t,  NNBIS  will  complement  but  not  replicate  the 
Drug  Enforcement  Task  Forces  operated  by  the 
NNBIS  will  monitor  suspected  smuggling 
utside  national  borders  and  destine  for  the 
1  coordinate  agencies'  seizure  of  contraband 
involved  in  illegal  drug  importation. 

5.  Is  there  an  Organized  Crime  and  Drug  Enforcement-type  Task  Force 
planned  for  Florida?  Will  additional  funding  be  required? 

The  Department  of  Justice  is  seeking  operatinq  funds  and 
additional  positions  of  a  Florida  Task  Force  in  FY  1985.   In  the 
interim,  9  attorneys  have  been  allocated  to  Florida  to  support  the 
already  increased  enforcement  and  prosecution  demands  being 
generated  in  the  state.   Further,  the  three  Florida  U.  8.  Attorneys 
are  included  in  the  planning  and  coordination  efforts  of  the  12  Drug 
Task  Force. 

6.  How  do  these  two  types  of  Task  Forces  relate  to  the  new  National 
Narcotics  Border  Interdiction  System  (NNBIS)  Task  Force  that  have 
been  recently  announced? 

The  South  Florida  Task  Force,  on  June  17,  1983,  became  one  of 
the  six  regional  centers  of  the  National  Narcotics  Border 
Interdiction  System.   As  stated,  NNBIS  is  designed  to  coordinate  the 
work  of  those  federal  agencies  with  existing  responsibilities  and 
capabilities  for  interdiction  of  sea-borne,  air-borne  and 
cross-border  importation  of  narcotics;  and  will  complement  but  not 
raplicat*  th«  duties  of  the  regional  Drug  Enforceitent  Task  Forces 
operated  by  the  Department  of  Justice. 

7.   What  are  the  numbers  of  staff  from  each  agency? 











.  77 
























































•  DEA  has  allocated  only  34  of  its  63  support  positions  across  the 
country,  leaving  29  remaining  positions  yets  to  distribute. 

**  L-^L.^^^^   ^^   support  positions  have  been  assigned  to  tha 
**■"    ry  Financial  Law  Enforcement  Center,  WashlMtm.  0.  C. 

25-694  0-84-8 


t  Customs  has  distributed  only  25  of  its  58  support  positions 
across  the  country,  and  has  assigned  33  of  those  58  positions 
to  the  Treasury  Financial  Law  Enforcement  Center  in  Washington. 

tt  ATF  has  distributed  only  54  of  its  72  aqent  positions  across  the 
country,  and  has  retained  a  pool  of  18  agents  for  use  in  any 
district  on  a  work-year  basis  as  need  arise. 

8.  Are  all  positions  authorized  in  Fiscal  Year  1983  actually  to  be 
filled  this  fiscal  year?   If  not,  why  not? 

Yes,  all  positions  will  be  filled  and  the  12  Drug  Task  Forces 
fully  operational  by  September  1. 

9.  What  is  the  current  or  most  up-to-date  total  of  staff  on-board 
at  each  of  the  twelve  Task  Forces?   How  many  of  these  are  located  in 
the  core-city,  and  how  many  secondary  cities  have  Organized  Crime 
and  Drug  Enforcement  Task  Force  staffing? 

There  are  over  855  attorneys  and  agents  on-board  the  12  Drug 
Task  Forces  (refer  to  the  response  to  question  7),  with  the  program 
scheduled  to  be  at  full  strength  on  September  1 .   The  assignment  and 
hiring  of  Task  Froce  personnel  are  now  processing  at  a  pace  to  meet 
this  deadline.   Therefore,  the  attorney,  agent  and  support  personnel 
allocations  for  the  individual  Task  Forces  are  provided  as  a  better 
representation  of  the  program  staffing  efforts. 

10.  The  1984  Budget  includes  separate  apppropriations  for  Justice 
and  Treasury  components  of  the  Task  Forces.  How  will  the  Attorney 
General  be  able  to  control  the  allocation  of  resources  under  these 
separate  budget  appropriations? 

This  issue  was  addressed  in  response  to  question  one. 

11.  What  is  the  status  of  hiring  and  training  agents  to  replace 
those  assigned  to  the  Task  Forces? 

As  stated  in  response  to  question  7,  600  new  agents  and 
attorneys  have  been  hired.   The  training  of  all  new  agents  should  be 
completed  or  underway  by  the  end  of  FY  1983.   The  hiring  and 
training  process  used  by  the  agencies  for  new  agents  is  not,  and 
ought  not  be  an  instantaneous  one.   The  agencies  are  choosing  these 
new  agents  with  customary  care  since  they  recognize  that  these  new 
agents  join  as  full-time  permanent  agents. 

12.  Has  a  baseline  number  of  agents  working  on  drug  enforcement  in 
each  participating  agency  been  established,  in  order  to  show  that 
the  Task  Forces  represent  an  increase  over  previous  levels? 

This  issue  is  being  address  in  the  development  of  the  Drug  Task 
Force  information  system. 

13.  How  will  Justice  decide  whether  the  Task  Force  program  is  an 
effective  use  of  drug  enforcement  resources? 

The  Department  is  in  the  process  of  developing  a  complete 
information  system  and  evaluation  design  specifically  for  the  Drug 
Task  Force  program.   The  information  system  and  evaluation  design  is 
intended  to  collect  and  analyze  the  usual  measurements  (arrests, 
seizures,  etc.)  as  well  as  attempt  to  assess  the  effectiveness  of 
the  Task  Force  approach. 

14.  When  would  such  an  evaluation  be  conducted? 

The  Department  of  Justice  will  conduct  an  evaluation  to  fulfill 
the  reporting  requirements  of  the  Annual  Report  to  the  President  and 
Congress  requested  in  the  December  20,  1982,  confer«nc«  raport. 


15.  Are  mechanisms  in  place  to  collect  the  data  needed  to  conduct 
this  type  of  evaluation? 

An  information  system  is  being  developed  specifically  for  the 
Drug  Task  Force  program  for  several  reasons:   first,  case- 
management;  second,  resources  allocation;  third,  coordination  and 
control  of  statistical  information;  fourth,  evaluation;  and  finally, 
reporting.   The  information  system  should  be  designed  by  mid-summer 
and  field  tested  by  early  fall. 

16.  Has  any  evaluation  of  the  results  of  the  South  Florida  Task 
Force  been  conducted?   What  is  the  reason  for  the  discrepancies  in 
the  figures  ouoepri  hv  various  officials  (ife.,  for  arrests, 
seizures,  etc.)?   If  no  reliable  data  and  evaluation  exists  for 
South  Florida,  how  can  Justice  support  its  statements  relating  to 
the  Task  Forces? 

There  has  been  no  formal  evaluation  conducted  on  the  South 
Florida  Task  Force  operation.   There  has  been  much  Congressional 
oversight  and  currently  GAO  is  conducting  an  on-site  review. 

There  has  been  releasable  data  provided  on  the  South  Florida 
effort.   Most  recently,  the  Vice  President,  when  announcing  the 
NNBIS  operation,  stated: 

"The  records  shows  that  in  South  Florida,  we  have  made  progress 
not  only  in  terms  of  combating  crime  and  thwarting  the  efforts  of 
drug  smugglers,  but  also  in  terms  of  improving  the  morale  of  the 
people  of  the  area.   We  have  brought  them  hope  for  the  future 
especially  as  it  relates  to  the  quality  of  life  in  Miami  and  the 
surrounding  areas. 

"In  February  1981,  a  public  opinion  survey  taken  by  Miami 
business  leaders  asked  this  question:   'Are  you  seriously 
considering  moving  out  of  the  area  because  of  the  crime  and  drug 
problems?'   Thirty-nine  percent  of  the  respondees  said  they  were. 
The  same  poll  was  taken  in  February  of  this  year  and  only  nine 
percent  said  they  were  considering  leaving... 

"While  the  war  on  narcotics  continues  in  South  Florida,  there 
is  impressive  evidence  that  we  are  making  solid  progress.   Drug 
arrests  are  up  27  percent.   Marijuana  seizures  are  up  23  percent. 
Cocaine  seizures  are  up  54  percent.   In  the  past  fifteen  months  we 
have  seized  nearly  three  million  pounds  of  marijuana  and  more  than 
17  thousands  pounds  of  cocaine  in  and  around  the  South  Florida  area. 
The  street  value  of  those  druqs  is  about  $5  billion." 

17.  Are  agency  reporting  systems  coordinated  to  prevent  duplication 
of  results  claimed  by  each  agency? 

Yes,  the  Druq  Task  Force  information  system  being  developed 
will  prevent  reporting  duplications. 

18.  How  many  of  the  cases  now  being  pursued  by  the  Task  Forces  are 
primarily  of  the  financial-investigation  type  and  how  many  are 
primarily  the  more  traditional  informant-  or  how  many  are  primarly 
the  more  traditional  informant-  or  undercover-type?   Which  agencies 
initiated  these  cases? 

As  a  result  of  the  preliminary  district-by-district  assessment 
of  the  drug  trafficking  and  the  initial  case  review  process,  260 
active  cases  were  selected  as  having  met  Task  Force  case  standards 
and  available  Task  Force  resources  were  committed.   These  initial 
Task  Force  cases,  being  predominately  complex  multi-agency 
investigations  of  the  organizers  and  financiers  of  high-level  drug 


trafficking  enterprises,  usually  have  more  than  one  focus  and 
numbers  presented  below  will  total  more  than  the  approved  260  Task 
Force  cases. 

Type  of  Activity  Number  of  Cases 

Importation  128 

Manufacture  21 

Distribution  188 

Financial  Underwriting  34 

Money  Laundering  79  - 

Public  Corruption  22 

Ninety-nine  percent  of  all  Task  Force  cases  involve  more  than 
one  investigative  agency.   The  following  chart  provides  an  overview 
of  the  number  of  cases  worked  by  Treasury  agencies,  by  Justice 
agencies  and  by  both  Treasury  and  Justice  agencies. 

Department  Cases 

Treasury  (IRS,  17 

Customs,  ATF) 

Justice  (FBI  53 

and  DEA) 

Joint  Treasury  190 

and  Justice 


In  addition,  state  and  local  law  enforcement  agencies  are 
actively  participating  in  a  majority  of  the  cases. 

19.  How  are  targets  for  Task  Force  investigations  being  selected? 
Are  the  targets  the  best  available  cases  that  have  some  opening  for 
investigation,  or  are  they  the  highest  known  traffickers  regardless 
of  how  easy  or  difficult  an  investigation  would  be? 

All  the  investigative  and  prosecutive  resources  assigned  to 
date  are  working  on  the   260  Task  Force  cases.   These  260  cases  have 
been  approved  by  the  United  States  Attorneys  for  the  judicial 
districts  involved,  the  Task  Force  Coordinators,  and  by  officials  of 
the  Department  here  in  Washington  to  ensure  that  they  meet  the 
strict  standards  established  for  Task  Force  cases.   Responsibility 
for  future  Task  Force  targeting  and  case  selection  will' rest  with 
the  agents  and  attorneys  in  the  fields.   These  professionals  are 
best  prepared  to  deal  with  the  nuances  of  a  case  and  institute  a 
successful  prosecution.   In  the  future,  all  Task  Force  cases  will  be 
approved  in  the  field  and  not  in  Washington  as  was  the  case  with  the 
initial  260  cases  selected. 

Future  investigations  and  case  selection  will  develop  from  the 
best  available  opportunities  as  well  as  targeting  major  drug 
traffickers  and  trafficking  organizations,  including  the  financiers 
and  money  launders.   Targeting  and  case  selection  will  focus  on 
causing  the  roost  long-term  damage  to  major  drug  trafficking  and 
financial  enterprises,  not  on  easy  arrests  and  convictions. 

20.  What  criteria  are  being  used  to  assure  that  the  highest-level 
trafficking  organizations  and  individuals  are  being  targeted? 

The  Guidelines  for  the  Drug  Enforcement  Task  Forces  provide  the 
standards  upon  which  the  U.  sT  Attorneys,  the  Assistant  U.  S. 
Attorney  Task  Force  Coordinator,  and  the  investigative  agency  Task 
Force  Coordinators  will  make  the  operational  investigation  and 
prosecution  selections.     

Further,  the  program's  organization  ensures  careful  monitoring 
of  the  Task  Force  effort,  including  case  selection,  by  the 
Department  of  Justice  and  the  participating  federal  investigative 
agencies.   The  program  is  directed  by  a  Working  Group,  which  is 
chaired  by  the  Associate  Attorney  General  and  managed  through  the 
Associate's  office. 


Senator  Biden.  Let  me  ask  a  few  questions. 

Mr.  Walker,  do  you  think  Customs  should  have  continuing  inves- 
tigative authority  like  they  had  in  the  Florida  task  force,  and  they 
do  not  have  now?  Customs  builds  a  case,  and  they  think  they 
should  follow  up.  As  I  understand  it  now,  they  have  to  turn  it  over 
to  DEA,  or  some  other  agency,  and  they  cannot  followup. 

Do  you  think  you  should  maintain  that  authority? 

Mr.  Walker.  Well,  we  start  off  with  the  fact  that  prior  to  the 
Florida  task  force.  Customs  on  a  seizure  would  turn  the  case  over 
to  DEA,  and  it  was  our  concern  that  these  cases  were  not  being 
fully  followed  up,  not  because  DEA  was  not  doing  its  job  in  the  best 
way  it  could,  but  simply  because  it  did  not  fit  in  with  DEA's  prior- 

Consequently,  as  the  Florida  task  force  was  established,  we  also 
established,  through  Justice-Treasury  cooperation,  a  working  joint 
task  group,  consisting  of  DEA  and  Customs,  and  this  group  is  still 
in  effect.  The  Florida  task  force  has  not  been  disbanded;  it  is  con- 
tinuing with  full  vitality,  and  this  joint  task  group  is  still  in  effect, 
following  up  on  investigations  of  interdictions  by  Customs. 

We  are  currently  in  the  discussion  stage  with  DEA  to  establish 
other  joint  task  groups,  as  the  needs  arise,  to  handle  interdictions 
around  the  country.  So  right  now  I  do  not  feel  that  the  situation 
needs  any  legislative  action.  I  think  it  can  be  handled  between  the 
departments,  in  terms  of  their  working  it  out  between  themselves. 

Senator  Biden.  I  can  sympathize  with  the  different  departments. 
You  remind  me  of  the  Democratic  Party — I  apologize  if  I  offend 
you — the  Democratic  Party  2  weeks  before  the  general  election.  We 
all  get  together  and  say  "Oh,  we  all  love  one  another,  we  are  all 
doing  well,"  I  realize  that  is  part  of  the  political  process  so  I  do  not 
know  even  why  I  asked  the  question,  to  tell  you  the  truth. 

I  am  glad  to  hear  all  is  well,  all  is  unified,  and  things  are  moving 
smoothly,  and  it  is  really  clicking  along,  and  I  hope  you  continue  to 
have  these  consultative  commissions  and  groups,  and  it  all  works 
out.  I  just  want  you  to  know,  a  whisper  in  your  ear — if  you  need 
help:  holler.  You  can  do  it  quietly.  You  can  send  up  a  message,  and 
I  can  release  an  unauthorized  report,  and  Mr.  Giuliani  can  be  ac- 
cused of  violating  the  law.  [Laughter.] 

Senator  Biden.  Now,  I  would  like  to  pursue,  if  I  may,  the  forfeit- 
ure provisions.  I  think  we  are  all  pretty  much  in  agreement,  at 
least  on  the  Senate  side,  but  changing  the  law  is  only  half  the 
problem.  Maybe  it  is  only  about  a  third  of  the  solution.  One  of  the 
things  we  found  with  extensive  hearings,  and  with  great  coopera- 
tion, I  might  add,  from  Justice  and  the  last  two  administrations,  is 
that  part  of  the  problem  is  exercising  the  authority  once  you  have 

Mr.  Walker,  I  would  like  to  ask  you  whether  or  not  you  believe 
that  Treasury  employees  receive  adequate  training  regarding  en- 
forcement of  forfeiture  laws? 

Mr.  Walker.  Well,  I  think  that  they  do  right  now.  I  think  there 
is  adequate  training,  but  the  problem  is  that,  as  we  see  it,  our 
hands  are  tied  because  the  administrative  forfeiture  provisions  are 
so  low  in  terms  of  the  threshold  amounts  that  we  are  faced  with 
having  to  maintain  custody  of  huge  quantities  of  forfeited  or  seized 
vehicles  that  have  yet  to  be  forfeited  judicially.  These  include  air- 


planes,  boats,  and  cars  that  are  tying  up  the  efforts  of  people  who 
would  otherwise  be  out  enforcing  the  law. 

I  think  the  training  aspect  of  it  is  being  handled,  but  that  still  is 
a  long  way  from  solving  the  problem. 

Senator  Biden.  I  was  going  to  ask  you  whether  you  see  any  co- 
ordination problems  in  the  joint  jurisdictions  of  Treasury,  Justice, 
DEA,  and  others  in  enforcement  of  the  forfeiture  laws.  I  will  not 
ask  you  that,  because  obviously  you  do  not  see  any. 

But  I  would  like  to  ask  you,  how  does  that  coordination  work 

Mr.  Walker.  In  the  forfeiture  aspects? 

Senator  Biden.  Forfeiture  aspects.  Obviously  it  has  been  going 

Mr.  Walker.  Well,  my  experience  is  that  with  forfeiture,  at 
least,  problems  of  coordination  have  not  surfaced  to  my  level.  If 
there  are  problems,  they  do  not  seem  to  be  paramount,  or  major. 
Most  of  the  forfeitures,  however,  are  conducted  independently. 

In  other  words,  DEA  will  seize,  or  Customs  will  seize,  and  then 
each  one  will  conduct  its  own  proceedings. 

Senator  Biden.  Is  that  not  part  of  the  problem? 

Mr.  Walker.  What  part?  I  mean 

Senator  Biden.  Well,  it  seems  as  though  it  results  in  double 
counting  and  other  coordination  problems,  in  terms  of  who  builds 
the  case.  It  is  one  thing  to  seize  the  Lear  Jet,  or  the  single  engine 
Piper  Cub  that  landed  with  the  cocaine,  or  whatever  substance  it 
was  smuggling  in.  It  is  another  thing  to  use  the  forfeiture  statutes 
to  trace  the  assets  with  which  Justice  is  most  concerned  so  that  it 
is  able  to  go  after  the  entire  empire.  That  is  what  the  drug  rings 
are  in  many  cases,  where  the  dollars  have  already  been  laundered 
into  legitimate  businesses.  Many  times  the  handling  of  a  forfeiture, 
or  the  seizure  of  the  plane,  impacts  upon  the  building  of  the  case 
and  in  following  additional  assets  all  the  way  through  the  chain  of 
that  particular  organization.  What  I  worry  about  is  that  narcotics 
law  enforcement  officers,  like  police  officers  are  .understandably  in- 
terested in  collars~in  arrests.  That  is  the  measure  by  which  we 
judge  their  effectiveness.  Prosecutors,  as  Mr.  Giuliani  knows  better 
than  I,  sometimes  consider  the  notch  on  the  gun  in  terms  of  convic- 
tions; that  is,  the  number  of  convictions,  rather  than  the  scope  and 
the  depth  of  the  effort.  It  works  the  same  way  with  forfeiture  pro- 

It  seems  to  me  that  we,  at  least  in  the  past,  have  not  built  cases 
well,  and  I  think  that  creates  a  great  deal  of  confusion.  When  DEA 
and  Justice  are  trying  to  build  a  major  forfeiture  case,  are  you  all 
called  in,  in  the  sense  that  you  are  told:  Now  such  and  such  organi- 
zation, which  we  understand  is  going  to  have  a  major  drop  over 
here,  is  involved  in  a  major  effort  we  have  going  to  build  forfeiture 
cases,  and  we  would  like  you  to  do  such  and  such. 

Do  you  understand  what  I  am  trying  to  say? 

Mr.  Walker.  Yes,  I  think  there  is  complete  coordination  on  that 
score.  You  are  talking  about  an  ongoing  investigation,  where  a  for- 
feiture case  is  being  built,  and  DEA  uncovers  information  that 
there  is  going  to  be  some  sort  of  an  importation. 


In  those  cases,  Customs  is  notified,  participates,  and  contributes 
to  the  coordination  of  ^e  case,  and  very  often,  there  is  virtually  no 
problem  in  that  kind  of  a  case. 

With  coordination  between  the  Bureaus,  we  have  two  different 
kinds  of  forfeiture.  One  is  the  seizure  at  the  time  of  interdiction, 
the  other  is  a  kind  of  forfeiture  that  is  built  after  a  judicial  pro- 
ceeding. They  really  are  separate,  and  they  can  be  viewed  separate- 

Justice  clearly  runs  the  latter,  and  DEA  generally  puts  those 

cases  together,  but  to  the  extent  that  there  is  coordination  with  the 
Treasury  Department  in,  say,  the  financial  aspects  of  the  case,  that 
does  not  seem  to  be  posing  any  problem. 

Mr.  Giuliani.  Senator,  may  I  just  add  something  to  what  you  are 

Senator  Biden.  Sure. 

Mr.  Giuliani.  I  do  not  think  seriously  we  are  really  here  saying 
that  there  are  no  problems  in  the  coordination  as  among  all  of  the 
agencies  that  are  involved  in  drug  enforcement.  There  are  prob- 
lems, and  there  always  will  be. 

John  and  I  were  assistant  U.S.  attorneys  together  in  the  South- 
ern District  of  New  York,  8  or  10  years  ago,  and  there  were  really 
problems  then,  and  basically  you  had  agencies  almost  shooting 
with  each  other  over  who  gets  credit  for,  as  you  point  out,  who  gets 
credit  for  the  arrest,  or  who  gets  credit  for  the  informant,  and  who 
gets  to  use  the  informant,  and  I  think  we  have  come  a  long  way. 

The  prior  administration,  this  administration,  with  the  help  of 
the  Congress,  and  a  lot  of  other  people  are  interested  in  this,  and  I 
think  we  have  come  a  long  way  in  doing  a  much  better  job  of  co- 
ordinating it.  Usually  the  best  way  to  coordinate  an  activity  like 
this,  that  ends  up  solving  all  of  the  problems,  and  that  is  pretty 
much  the  philosophy  that  John  has  used  at  Treasury,  and  that  we 
have  used  at  Justice,  is  to  get  the  agents  to  work  together.  If  you 
can  put  them  together  in  the  field,  working  together  on  an  investi- 
gation, all  of  a  sudden  they  find  that  they  can  share  information, 
that  it  is  to  their  mutual  benefit  to  share  information,  and  a  lot  of 
the  stereotypes  that  one  agency  has  about  another  breakdown. 

When  we  first  got  involved  in  the  coordination  of  the  FBI  and 
DEA,  there  were  an  awful  lot  of  stereotypes  that  the  FBI  had 
about  DEA,  and  that  DEA  had  about  the  FBI.  Judge  Webster  se- 
lected one  particular  FBI  agent  to  negotiate  with  another  DEA 
agent  as  to  the  guidelines  that  they  would  come  out  with,  and  the 
agent,  after  about  3  or  4  days  of  negotiating,  came  to  my  office  and 
said,  hey,  you  know  something,  those  guys  actually  are  pretty  qood. 
And  that  is  exactly  what  has  happened  now  with  the  FBI  and  DEA 
working  together. 

There  will  still  be  problems,  there  will  still  be  situations  where 
you  want  information  faster  than  you  get  it,  or  you  believe  your 
investigation  is  very  important,  and  therefore  it  should  be  followed 
up,  and  somebody  disagrees.  It  is  very  important  that  we  have 
mechanisms  for  bringing  those  problems  up  to  a  high  enough  level 
so  that  if  it  is  necessary,  John  can  sit  down,  as  it  has  happened  on 
three  or  four  occasions,  I  guess,  with  Judge  Webster,  and  Bud 
Mullen,  and  work  out  those  problems,  and  any  other  ways  in  which 


we  can  do  that  better,  we  are  appreciative  of  considering,  and 
working  on. 

I  think — and  I  do  not  mean  this  to  sound  like  we  are  boasting, 
but  I  think  cooperation  has  worked  between,  at  least  Justice  and 
Treasury,  Customs,  DEA,  and  FBI,  a  lot  better  in  the  last  2  years, 
just  by  virtue  of  getting  together  both  at  a  high  level  and  at  the 
agent  level,  than  it  ever  has  before,  and  there  is  no  reason  why 
that  would  not  continue.  It  is  very  important  to  build  institutions 
that  accomplish  that  as  well. 

But  I  believe  that  cooperation  is  working  better  than  it  ever  has 
before,  albeit  that  there  are  problems. 

Mr.  Walker.  If  I  could  just  elaborate  on  that  just  a  little  bit. 

There  is  naturally  a  built-in  tendency  on  the  part  of  every  law 
enforcement  agency  to  build  an  esprit-de-corps  a  sense  of  eliteness 
about  itself,  and  this  tends  to  inhibit  coordination  or  cooperation, 
because  each  agency  likes  to  think  of  itself  as  something  special. 

Without  attempting  to  break  down  that  spirit,  there  are  certain- 
ly ways  in  which  mutual  respect  could  be  generated  between  the 
agencies.  One  is  the  use  of  the  joint  task  force,  and  we  have  used 
joint  task  forces  more,  I  think,  than  they  have  been  used  in  the 
past,  both  in  south  Florida,  in  the  joint  task  group  that  between 
DEA,  Customs,  I  mentioned  earlier,  and  also  in  the  interdiction 
effort;  but  also  largely  through  the  efforts  of  Mr.  Giuliani  in  estab- 
lishing the  12  new  joint  task  groups  that  were  announced  by  the 
President  last  October. 

These  will,  we  feel,  contribute  greatly  to  reduced  tensions  and 
conflicts  between  agencies,  increase  cooperation,  and  maximize  the 

Also,  on  a  more  localized  level,  the  prominent  role  that  is  being 
played  by  U.S.  attorneys,  in  running  joint  task  groups,  is  a  mecha- 
nism that  seems  to  be  working.  At  Treasury,  we  like  to  work  under 
U.S.  attorneys.  We  feel  that  this  is  a  good  mechanism  for  promot- 
ing cooperation  and  coordination  among  agencies. 

Senator  Biden.  If,  at  Treasury,  you  like  this  coordination,  why  is 
it  that  there  is  the  need  for  Treasury  to  have  separate  control  of 
their  budget  and  their  personnel  in  the  Organized  Crime  Task 
Force,  I  thought  the  Attorney  General  said  to  us  last  year  that 
there  was  not  a  need  for  the  approach  I  was  suggesting  because  the 
task  forces  would  allow  him  to  have  the  authority  they  needed  in 
order  to  make  the  task  forces  work. 

I  am  a  little  confused  as  to  why  budgetary  control  of  your  por- 
tion of  the  task  forces  is  back  in  Treasury. 

Mr.  Walker.  I  think,  and  I  would  like  Rudy  to  comment  on  this, 
I  think  one  of  the  core  principles  of  the  new  task  force  is  that  we 
were  not  setting  up  a  new  law  enforcement  agency.  We  were 
taking  existing  agencies,  and  providing  a  framework,  a  mechanism 
for  coordinating  their  activities  in  a  meaningful  way.  We  were  not 
setting  up  a  new  bureaucracy  or  authority  to  which  the  Congress 
would  appropriate  funds. 

So  one  of  the  principles  that  was  established  here  was  that  each 
agency  would  retain  autonomy  over  its  own  people,  in  terms  of  ad- 
ministrative controls,  and  also  budget  authority,  with  the  exception 
of  the  first  year. 


For  the  first  year,  we  agreed  that  Justice  would  go  forward  and 
ask  for  the  funds,  in  order  to  expedite  the  starting  up  of  these  task 
forces.  But  that  was  done  to  speed  up  the  process  in  the  first  year 
only,  and  was  not  intended  to  be  any  kind  of  precedent  for  the 

Obviously  there  are  considerations,  including  congressional  con- 
siderations, that  have  a  bearing  on  this.  We  have  our  own  funding 
levels  before  our  Appropriations  Committee. 

Senator  Biden.  We  misunderstood  that,  or  at  least  I  did.  The 
fiscal  year  1983  budget  message,  which  was  sent  up  with  the  re- 
quest said,  and  I  quote, 

Single  appropriation  will  provide  the  Attorney  General  with  the  necessary  man- 
agement tool — meaning  him — to  reallocate  resources  among  the  organizational  com- 
ponents of  the  task  force,  as  well  as  between  the  regions,  with  undue  delay. 

I  guess  that  is  your  point. 

As  Cabinet  officer  with  responsibility  for  task  forces,  the  Attorney  General  must 
have  the  authority  over  the  resources  to  approve  for  the  effort.  Failure  to  provide 
this  authority  would  weaken  the  Attorney  General's  ability  to  coordinate  the  activi- 
ties of  many  of  the  organizations  of  the  three  Cabinet  agencies  comprising  this 

Finally,  it  is  believed  that  the  single  appropriation  will  reduce  competition  among 
the  participating  agencies.  Previously  such  efforts  have  evidenced  competition  for 
resources  among  individual  agencies  at  the  expense  of  the  overall  effort.  From  the 
perspective  of  Congress,  a  single  appropriation  will  facilitate  the  legislative  over- 
sight and  review  of  the  process. 

I  do  not  think  it  was  unreasonable  for  us  to  believe  that  was  the 
way  in  which  this  approach  would  continue.  I  would  be  very  sur- 
prised if  the  majority  thought  that  it  was  not  going  to  go  that 
route.  It  seems  as  though  the  reason  that  it  is  changing  is  that  the 
faction  fighting  is  back. 

Mr.  Giuliani.  It  is  unfortunate,  Senator,  that  it  was  written  that 
way.  You  are  absolutely  right.  It  is  certainly  justifiable  to  conclude 
from  the  way  it  was  originally  presented,  and  what  you  read,  that 
that  was  the  permanent  arrangement,  the  way  in  which  the  task 
forces  will  be  budgeted.  But  in  fact,  from  the  time  that  it  was  first 
presented,  it  was  supposed  to  be  a  budget  that  the  Attorney  Gener- 
al would  control  the  first  year,  for  two  purposes. 

The  one  that  John  mentioned,  which  is  because  it  had  to  be  done 
quickly,  and  second,  so  that  it  could  be  formed  up  with  some  coher- 
ent overview  of  all  of  the  agents  that  were  going  into  it,  and  how 
they  would  be  deployed  throughout  the  country,  and  then  as  soon 
as  possible,  and  I  believe  right  from  the  very  beginning,  that  that 
was  the  second  year. 

As  soon  as  possible,  budget  authority  would  be  returned  to  the 
agencies  that  were  involved.  Unfortunately,  whoever  wrote  that, 
concentrated  on  the  first  half,  and  not  the  second  half 

Senator  Biden.  Well,  I  have  trespassed  on  your  time.  I  will 
submit  a  number  of  questions  for  the  record. 

I  will  conclude  with  one  last  question,  and  one  more  comment. 

The  question  relates  to  the  death  penalty. 

Without  arguing  the  merits,  or  lack  thereof,  of  the  death  penalty 
as  a  deterrent,  or  whether  or  not  it  is  constitutionally  permissible, 
or  whether  or  not  it  is  cruel  and  unusual  punishment,  I  would 
think  this  to  be  a  very  practical  question. 


There  have  been  a  number  of  cases,  not  in  the  hundreds,  but 
tens  of  cases,  in  the  last  decade  and  a  half  that  you  have  document- 
ed, where  a  person  who  in  fact  was  convicted  of  a  capital  offense, 
was  later  determined,  as  a  consequence  of  the  appearance  of  an  ad- 
ditional witness,  or  material  in  the  file,  or  whatever,  to  be  innocent 
of  the  crime.  This  situation  has  surfaced  in  several  Pennsylvania 
cases  in  the  last  year  and  a  half. 

That  is  the  reason  I  am  against  the  death  penalty.  I  do  not  have 
any  constitutional  objection,  quite  frankly.  I  do  not  have  an  objec- 
tion that  relates  to  the  morality  of  the  issue.  I  do  not  believe  that  it 
is  beyond  the  power  of  the  Government  to  enforce  such  a  statute. 

Consequently,  what  I  have  been  attempting  to  promote  as  an  al- 
ternative to  the  death  penalty,  has  been  a  provision  that  would  re- 
quire for  capital  offenses  a  minimum  mandatory  sentence  with  no 
probation  and  no  parole  unless  proof  that  the  person  did  not 
commit  the  crime  came  to  light. 

Now,  my  question  to  you  is,  as  a  practical  matter,  assuming  for 
the  moment  that  the  Biden  alternative  were  to  prevail,  what  would 
be  the  Department's  argument  against  such  a  provision? 

Is  it  that  this  provision  would  clog  the  death  row,  or  it  would  cost 
too  much  money?  What  would  be  the  rationale  to  oppose  such  a 
provision  in  the  law,  if  the  administration  would  oppose  it? 

Mr.  Jensen.  Perhaps  I  did  not  get  the  full  comport  of  your  pro- 

Senator  Biden.  It  would  be  an  alternative  to  the  death  penalty. 

Mr.  Jensen.  The  alternative  would  be  life  in  prison? 

Senator  Biden.  Without  possibility  of  probation,  or  parole. 

Mr.  Jensen.  Then  that  is  simply  the  issue,  on  a  policy  level,  or  in 
terms  of  the  criminal  justice,  or  a  social  level,  is  whether  or  not 
you  have  the  death  penalty  at  all.  It  gets  back  to  precisely  the  kind 
of  social  decision  that  you  are  talking  about  before.  It  gets  into  the 
whole  issue  of,  in  terms  of  morality,  and  the  social  value,  and  the 
reason  why  a  criminal  justice  system  ought  to  have  a  death  penal- 

There  are  arguments  about  this,  and  I  think  what  you  are  simply 
taking  is  the  argument  that  because  of  your  feeling  about  the  in- 
ability of  the  system  to  arrive  at  a  permanent  verdict,  that  means 
that  you  would  not  have  a  death  penalty.  That  is  an  issue  of 

I  would  debate  it  on  the  other  side.  But  I  think  that  what  your 
argument  would  be,  would  simply  create  a  system  where  you  had 
life  imprisonment  without  parole  as  being  the  top  level  punishment 

I  simply  say  that  our  argument,  as  we  put  it  forward,  is  that  the 
punishment  that  ought  to  be  available  is  the  death  penalty. 

Senator  Biden.  Because  it  is  a  stronger  deterrent? 

Mr.  Jensen.  That  is  correct.  It  is  almost  an  argument  in  terms 
of,  that  it  is,  what  society  wants  by  way  of  a  criminal  justice 
system  sanction  for  the  most  egregious  and  outrageous  offenses 
committed  in  that  society,  and  that  I  had  some  experience  in  Cali- 
fornia, trying  a  lot  of  cases  in  this  area,  and  they  introduced  the 
concept  you  talk  about,  in  terms  of  an  alternative,  that  is,  you 
could  have  a  death  penalty  or  life  in  prison,  without  parole.  That 
was  a  new  concept,  it  was  not  a  part  of  California  law  before. 


The  experience  we  had  was  that  jurors  faced  with  that  decision, 
when  they  could  decide  either  death  penalty,  or  life  imprisonment 
without  parole,  did  in  fact  choose  the  death  penalty. 

Senator  Biden.  One  last  comment.  I  think  that  the  message  that 
Senator  Kennedy  and  I  will  try  to  communicate  to  the  Attorney 
General,  is  in  very  little  disagreement  with  the  essential  issues. 

If  I  set  out  a  list,  and  said  you  could  only  have  four  or  five 
things,  I  would  be  surprised  if  the  four  or  five  pieces  of  legislation 
you  picked  were  not  the  four  or  five  that  the  majority  of  the 
Senate  would  pick.  I  would  hope  that  we  could  get  to  the  point 
where  we  are  able  to  pick  out  what  we  can  agree  upon  between  the 
Democratic  package  that  was  introduced  and  the  administration's 
package  since  they  are  similar  in  size  and  scope,  because  we  have 
to  get  something  through  the  House. 

I  want  to  publicly  thank  your  Department.  I  am  probably  harm- 
ing your  reputation  by  saying  you  are  a  terrific  guy.  Your  congres- 
sional liaison  has  been  very,  very  good,  and  I  hope  that  will  contin- 
ue. We  hope  that  you  do  not  pigeonhole  the  bill  as  a  Democratic 
bill,  or  a  Republican  bill,  because  that  will  serve  only  to  defeat  our 
common  goals. 

You  saw  that  happen  with  the  criminal  code  omnibus  bill.  Well, 
this  is  a  minicriminal  code,  with  additional  provisions. 

Let  us  work  together  to  see  what  we  can  accomplish. 

Thank  you  very  much  for  your  time.  Good  luck,  gentlemen,  in 
Manhattan.  I  hope  things  work  out  well  for  you. 

Thank  you  very  much. 

[Whereupon,  at  12:48  p.m.,  the  subcommittee  adjourned,  subject 
to  the  call  of  the  Chair.] 

[The  following  was  received  for  the  record:] 









TITLE  I  —  Bail  Reform 

The  first  title  of  the  "Comprehensive  Crime  Control  Act" 
addresses  a  matter  of  the  highest  priority:   the  urgent  need  for 
substantial  improvements  in  federal  bail  law.   In  recent  years, 
there  has  been  a  growing  consensus  among  members  of  the  Congress, 
the  judiciary,  the  law  enforcement  community  and  the  public  at 
large,  that  legislation  to  cure  the  striking  deficiencies  of  our 
bail  laws  must  be  enacted. 

Certainly,  it  cannot  be  said  that  our  current  bail  system  is 
in  all  respects  a  failure.   Present  law,  the  Bail  Reform  Act  of 
1966,  provides  a  workable  and  responsive  framework  for  releasing 
non-violent  offenders  who  pose  little  risk  of  flight,  and  this 
beneficial  aspect  of  current  law  is  retained  in  our  bail 
amendments.   However,  it  is  with  respect  to  the  most  serious 
offenders,  the  habitual  violent  or  dangerous  defendant  or  the 
well-heeled  drug  trafficker,  that  the  system  fails.   These 
failures  are  a  source  of  growing  frustration  to  effective  law 
enforcement  and  have  fostered  the  public's  increasing 
disillusionment  with  a  criminal  justice  system  that  too  often 
appears  unable  to  protect  the  public  safety  or  to  assure  that 
criminals  are  brought  to  trial. 

To  address  these  problems,  the  bail  reform  title  of  our  bill 
would  strengthen  the  ability  of  the  courts  to  ensure  that 
defendants  appear  for  trial  and  would,  for  the  first  time, 
recognize  defendant,  dangerousness  as  a  legitimate  consideration 


in  all  ball  decisions.   The  ball  reform  provisions  of  our  bill 
are  no  doubt  familiar  to  many  of  you.   They  are  virtually 
identical  to  comprehensive  bail  reform  legislation  passed  by  the 
Senate  last  year  by  an  overwhelming  95  to  1  vote  and  which,  as 
S.  215,  Is  now  pending  approval  by  the  Judiciary  Committee.   As 
was  evidenced  in  this  fully  bipartisan  vote  for  strong  bail 
legislation,  the  current  bail  reform  movement  is  not  a  matter  of 
politics  or  Ideology.   Rather,  it  is  derived  from  more  than 
fifteen  years  of  experience  with  our  present  ball  laws  —  an 
experience  that  has  clearly  illustrated  the  need  for  change. 

For  example,  in  South  Florida,  despite  the  fact  that  the 
average  bond  for  drug  defendants  is  $75,000,  seventeen  percent  of 
these  defendants  never  appear  for  trial.   Bonds  in  the  hundreds 
of  thousands  of  dollars  are  forfeited  as  major  drug  defendants 
flee  the  country  to  avoid  prosecution.   For  persons  in  the 
enormously  lucrative  drug  trade  —  a  trade  that  has  been  estima- 
ted to  run  in  the  tens  of  billions  of  dollars  annually  — 
forfeiture  of  huge  bonds  has  become  a  simple  cost  of  doing 
business  and  ultimately  an  easily  met  cost  of  escaping  convic- 

Although  this  alarming  incidence  of  bail  jumping  points  out 
the  need  to  improve  current  law,  at  least  current  law  provides  a 
framework  for  addressing  the  problem  of  defendants  who  are  very 
serious  flight  risks.   The  problem  of  the  release  of  extremely 
dangerous  defendants,  however,  is  one  that  current  law  virtually 
ignores.   Two  cases  from  the  Eastern  District  of  Michigan  amply 
illustrate  the  need  to  put  considerations  of  defendant  dangerous- 
ness  on  an  equal  footing  with  considerations  of  risk  of  flight  in 
the  courts'  bail  determinations. 

In  November  of  last  year,  George  Gibbs  was  charged  with  the 
armed  robbery  of  a  credit  union.   Despite  the  violent  nature  of 
the  offense,  very  strong  evidence  of  his  guilt,  and  the  fact  that 
Gibbs  was  a  suspect  in  four  other  armed  robberies,  the  magis- 
trate, over  the  protests  of  the  government,  set  a  $25,000  bond 
with  only  a  10%  deposit  required,  citing  his  inability  under 
current  law  to  consider  evidence  of  the  defendant's  dangerousness 
in  ■•ttlng  bmil.   Although  a  dlatrict  judge  changed  th«  bond  to  a 


cash  surety  bond  after  an  appeal  by  the  government,  the  amount  of 
the  bond  was  not  increased,  and  Gibbs  was  able  to  meet  it  almost 
immediately.   Four  days  later,  Gibbs  and  a  partner  held  up  a 
bank,  striking  a  teller,  threatening  to  kill  the  assistant 
manager,  and  shooting  the  police  officer  who  pursued  them  as  they 
attempted  to  escape. 

The  second  Michigan  case  also  involved  a  defendant  charged 
with  bank  robbery.   In  1979,  Michael  Dorris  was  convicted  of  the 
armed  robbery  of  a  Michigan  bank.   Last  year,  within  a  few  months 
after  Dorris  had  been  released  on  parole,  the  same  bank  was 
robbed  at  gunpoint  again.   Within  hours,  the  FBI  arrested  Michael 
Dorris  for  this  second  robbery.   He  was  not  far  from  the  scene  of 
the  crime  and  weapons  and  a  large  amount  of  cash  were  also 
seized  at  the  time  of  his  arrest.   Like  George  Gibbs,  Michael 
Dorris  was  soon  released  on  bail.   At  a  subsequent  meeting  with 
his  parole  officer,  Dorris  was  informed  that  in  light  of  his 
latest  arrest,  the  officer  would  seek  revocation  of  his  parole. 
Dorris,  who  under  a  rational  bail  system  clearly  should  have  been 
held  in  custody  in  light  of  the  seriousness  of  the  offense 
charged  and  his  status  as  a  parolee,  simply  got  up  and  left  when 
the  parole  officer  went  to  locate  a  marshal.   Inadequate  bail 
laws  could  do  nothing  to  stop  the  revolving  door  of  the  criminal 
justice  system.   Eventually  Dorris  resurfaced,  but  only  after 
weeks  of  valuable  FBI  investigative  effort  had  been  wasted  in 
trying  to  locate  him. 

The  Administration's  proposed  bail  legislation,  like  similar 
bills  introduced  in  this  and  the  last  Congresses,  sets  out  a 
comprehensive  statutory  scheme  that  would  for  the  first  time 
provide  the  federal  courts  with  adequate  authority  to  make 
release  decisions  that  effectively  protect  both  the  integrity  of 
the  judicial  process  and  the*public  safety. 

The  most  prevalent  criticism  of  the  current  bail  system  is 
that  it  does  not  permit  the  courts,  except  in  capital  cases,  to 
consider  the  danger  a  defendant  may  pose  to  others  if  released .V 

V  The  broad  base  of  support  for  permitting  consideration  of 
defendant  dangerousness  in  all  pretrial  release  decisions  is 
cited  in  the  Judiciary  Committee's  report  on  S.  ^55^    in  the  last 
Congress  --  legislation  that  is  for  the  most  part  identical  to 
the  Administration's  bail  reform  proposal.   S.  Rep.  No.  97-317, 
97th  Cong.,  2d  Sess.  36-7  (1982). 


The  sole  issue  that  may  be  addressed  is  likelihood  that  the 
defendant  will  appear  for  trial.   Thus  our  Judges  are  without 
statutory  authority  to  impose  conditions  of  release  geared  toward 
assuring  community  safety  or  to  deny  release  to  those  defendants 
who  pose  an  especially  grave  danger  to  others.   As  a  result,  when 
making  release  decisions  with  respect  to  demonstrably  dangerous 
defendants,  Judges  are  faced  with  a  dilemma:   they  may  release 
the  defendant  pending  trial  despite  the  fear  that  this  will 
Jeopardize  the  safety  of  others,  or  they  can  find  a  reason,  such 
as  risk  of  flight,  to  detain  the  defendant  by  imposing  a  high 
money  bond.  Many  critics  of  current  bail  laws  believe  that  too 
often  the  resolution  of  this  dilemma  may  cause  the  courts  to  make 
intelle<3tually  dishonest  determinations  that  the  defendant  may 
flee  when  the  real  problem  is  that  he  appears  likely  to  engage  in 
further  dangerous  criminal  conduct  if  released.   Our  law  denies 
the  opportunity  to  address  the  issue  of  dangerousness  squarely. 

Federal  bail  law  must  be  changed  so  that  it  recognizes  that 
the  danger  a  defendant  may  pose  to  others  is  as  valid  a  consid- 
eration in  the  pretrial  release  decision  as  is  the  presently 
permitted  consideration  of  risk  of  flight.   This  change  is  one  of 
the  most  important  elements  of  our  proposed  bail  legislation. 

Support  for  giving  judges  the  authority  to  weigh  risks  to 
community  safety  in  bail  decisions  is  widely  based  and  is  a 
response  to  the  growing  problem  of  crimes  committed  by  persons  on 
release  —  a  problem  that  exists  in  spite  of  what  many  believe  is 
a  not  uncommon  practice  of  detaining  especially  dangerous 
defendants  through  the  imposition  of  high  money  bonds.   In  a 
recent  study  conducted  by  the  Lazar  Institute,  one  out  of  six 
defendants  were  rearrested  during  the  pretrial  period.   Nearly 
one-third  of  these  persons  were  rearrested  more  than  once,  and 
some  as  many  as  four  times. 2/   Similar  levels  of  pretrial  crime 
were  reported  in  a  study  of  release  practices  in  the  District  of 
Columbia  where  thirteen  percent  of  all  felony  defendants  were 

£/  Lazar  Institute,  "Pretrial  Release:   An  Evaluation  of 

Defendant  Outcomes  and  Program  Impact"  48  (Washington,  D.C. 
August  1981). 


rearrested.   Among  defendants  released  on  surety  bond,  the  form 
of  conditional  release  reserved  for  those  who  are  the  greatest 
bail  risks,  the  incidence  of  rearrest  reached  the  alarming  rate 
of  twenty-five  percent. 3^/ 

Allowing  the  courts  to  consider  evidence  of  dangerousness 
and  to  impose  conditions  of  release  specifically  geared  toward 
reducing  the  likelihood  of  further  criminal  conduct  such  as  third 
party  custody  or  required  drug  or  alcohol  abuse  treatment,  would' 
be  a  significant  improvement  in  current  law.   It  is,  however, 
only  a  partial  solution,  for  we  must  recognize  that  with  respect 
to  certain  defendants,  it  will  be  clear  that  no  form  of  condi- 
tional release  will  be  adequate  to  address  the  sigjiificant  threat 
they  will  pose  to  the  safety  of  the  innocent  public  if  released. 
Therefore,  it  is  essential  that  amendment  of  our  bail  laws 
include,  as  does  our  current  legislative  proposal,  authority  to 
deny  release  altogether  in  such  cases. 

Pretrial  detention  has,  in  the  past,  been  a  very  controver- 
sial issue.   While  opposition  to  this  concept  still  exists, 
increasing  numbers  of  legislators  and  persons  involved  in  the 
criminal  justice  system  have  come  to  realize  that  authority  to 
deny  bail  to  extremely  dangerous  defendants  is  a  necessity. V 
Pretrial  detention  is,  of  course,  already  part  of  our  bail 
system.   The  authority  of  the  courts  to  deny  release  to  defen- 
dants who  are  especially  serious  flight  risks  or  who  have 
threatened  jurors  or  witnesses  has  been  recognized  in  case  law. 
Pretrial  detention  based  on  dangerousness  was  incorporated  in  the 
District  of  Columbia  Code  passed  by  the  Congress  in  1970  and  is 
authorized  under  federal  Juvenile  delinquency  statutes.   More- 
over, a  significant  number  of  federal  defendants  are  held  in 
custody  pending  trial  because  they  are  unable  to  meet  high  money 

3/  Inrtltut*  for  Law  and  Social  Research,  "Pretrial  Release 
and  Misconduct  in  the  District  of  Columbia"  HI  (April  1980). 

V  For  a  discussion  of  the  consCltutlonallty  of  pretrial 
■*  detention,  See  S.  Rep.  No.  97-317,  supra  note  1 ,  at  37-8. 


bonds?/  —  and  many  argue  that  at  least  a  portion  of  these  cases 
of  detention  result  from  the  ^imposition  of  bonds  that  are  more  a 
reflection  of  a  Judge's  understandable  concerns  about  the  threat 
the  defendant  poses  to  others  than  of  concerns  that  he  will  not 
appear  for  trial. 

Of  course,  the  availability  of  pretrial  detention  authority 
will  not  entirely  solve  the  problem  of  bail  crime,  nor  is 
pretrial  detention  appropriate  for  other  than  a  small,  but  ■ 
identifiable, . group  of  the  most  dangerous  defendants.   However, 
where  there  is  a  high  probability  that  a  person  will  commit 
additional  crimes  if  released  pending  trial,  the  need  to  protect 
the  public  becomes  sufficiently  compelling  that  a  defendant 
should  not  be  released.   This  rationale  —  that  a  defendant's 
interest  in  remaining  free  prior  to  conviction  is,  in  certain 
circumstances,  outweighed  by  the  need  to  protect  societal 
interests  —  is,  in  essence,  that  which  has  served  to  support 
court  decisions  sanctioning  the  denial  of  bail  to  defendants  who 
have  threatened  jurors  or  witnesses  or  who  pose  significant  risks 
of  flight.^/  In  such  cases,  the  societal  interest  at  issue  is 
the  need  to  protect  the  integrity  of  the  judicial  process. 
Surely,  the  need  to  protect  the  innocent  from  brutal  crimes  is  an 
equally  compelling  basis  for  ordering  detention  pending  trial. 

Because  of  the  importance  of  the  defendant's  interest  which 
is  at  stake  when  pretrial  detention  is  considered,  the  authority 
to  deny  release  should  be  available  only  in  limited  types  of 
cases,  only  after  a  hearing  incorporating  significant  procedural 
safeguards,  and  only  when  the  findings  on  which  the  detention 
order  is  based  are  supported  by  clear  and  convincing  evidence. 

J/  For  example,  in  fiscal  year  1982,  IB. 4^  of  federal  defend- 
ants were  subject  to  some  period  of  pretrial  detention,  and 
61.3%  of  those  defendants  were  held  for  more  than  ten  days. 
1982  Reports  of  the  Proceedings  of  the  Judicial  Conference  of 
the  United  States  and  Annual  Report  of  the  Director  of  the 
Administrative  Office  of  the  United  States  Courts  (herein- 
after cited  as  "1982  Annual  Report")  352-5  (Table  D-13).   It 
is  likely  that  a  good  proportion  of  the  more  substantial 
•  terms  of  pretrial  detention  were' due  to  difficulties  in 
meeting  high  money  bonds. 

6/  See,  e.g.,  United  States  v.  Wind,  527  F.2d  627  (6th  Cir. 
1975);  United  States  v.  Abrahams,  575  F.2d  3  (1st  dr.), 
cert,  denied,  1*39  U.S.  621  (1978). 

25-694  O  -  84  -  9 


The  Administration's  pretrial  detention  provision  meets  each  of 
these  requirements,  and  so  provides  a  framework  in  which  deten- 
tion will  be  ordered  only  when  no  other  alternative  is  available. 

Our  legislation  also  contains  a  specialized  pretrial 
detention  authority  that  would  have  been  especially  appropriate 
in  the  Dorris  case  we  mentioned.   This  provision  allows  a  tempo- 
rary ten-day  detention  of  defendants  who  are  arrested  while  they 
are  already  on  bail,  parole,  or  probation.   During  this  period, 
the  defendant  may  be  held  in  custody  while  the  original  releasing 
authorities  are  contacted  and  given  an  opportunity  to  take 
appropriate  action.   A  similar  provision  of  the  District  of 
Columbia  Code  has  been  cited  by  former  United  States  Attorney 
Charles  Ruff  as  one  of  the  most  effective  tools  available  to  his 
Office  in  dealing  with  recidivists. 

As  the  statistics  on  bail  jumping  among  drug  defendants 
noted  earlier  indicate,  the  problems  with  current  federal  bail 
law  aren't  confined  to  the  area  of  defendant  dangerousness.   The 
goal  of  assuring  appearance  at  trial  —  the  very  purpose  of  our 
present  statute  —  isn't  being  adequately  met.   Therefore,  our 
bail  reform  proposals  include  amendments  to  address  this  problem 
as  well.   First,  we  provide  clear  authority  for  the  courts  to 
inquire  into  the  sources  of  property  that  will  be  used  to  post 
bond  and  to  reject  the  use  of  proceeds  of  crime  for  this  purpose. 
Our  experience  with  drug  defendants  has  shown  that  the  forfeiture 
of  even  very  large  bonds  in  these  circumstances  is  not  a  suffi- 
cient disincentive  to  flight.   Second,  our  proposals  codify  the 
existing  authority  we  mentioned  earlier  to  deny  release  entirely 
to  persons  who  are  especially  severe  flight  risks.  Third,  our 
proposal  would  enhance  the  deterrent  value  of  the  penalties  for 
bail  jumping  by  making  them  more  closely  proportionate  to  the 
severity  of  the  offense  with  which  the  defendant  was  charged  when 
he  was  released  and  requiring  that  they  run  consecutively  to  any 
other  term  of  imprisonment  imposed  i 

A  final  aspect  of  our  proposal  —  one  that  has  been  incorpo- 
rated as  well  in  other  bail  reform  bills  now  before  the  Congress 
—  would  address  what  the  Attorney  General's  Task  Force  on 


Violent  Crime  described  as  "one  of  the  most  disturbing  aspects" 
of  current  federal  bail  law,  namely  a  standard  which  presumptive- 
ly favors  release  of  convicted  persons  who  are  awaiting  imposi- 
tion or  execution  of  sentence  or  who  are  appealing  their  convic- 
tions.  The  Task  Force's  reasons  for  recommending  that  this 
standard  be  abandoned  are  sound  ones: 

"First,  conviction,  in  which  the  defen- 
dant's guilt  is  established  beyond  a 
reasonable  doubt,  is  presumptively 
correct  at  law.   Therefore,  while  a 
statutory  presumption  in  favor  of  release 
prior  to  an  adjudication  of  guilt  may  be 
appropriate,  it  is  not  appropriate  after 
conviction.   Second,  the  adoption  of  a 
liberal  release  policy  for  convicted 
persons,  particularly  during  the  pendency 
of  lengthy  appeals,  undermines  the 
deterrent  effect  of  conviction  and  erodes 
the  community's  confidence  in  the 
criminal  justice  system  by  permitting 
convicted  criminals  to  remain  free  even 
though  their  guilt  has  been  established 
beyond  a  reasonable  doubt."'/ 

In  the  Administration's  bail  proposal,  post-conviction 
release  would  be  available  only  in  those  cases  in  which  the 
convicted  person  is  able  to  produce  convincing  evidence  that  he 
will  not  flee  or  pose  a  danger  to  the  community  and,  if  the 
person  is. awaiting  appeal,  that  his  appeal  raises  a  substantial 
question  of  law  or  fact  likely  to  result  in  reversal  of  his 
conviction  or  an  order  for  a  new  trial.   No  lesser  standard,  In 
our  view,  is  justifiable,  particularly  since  the  reversal  rate 
for  federal  convictions  is  only  approximately  ten  percent. 5/ 

Substantial  improvements  in  federal  bail  laws  are  urgently 
needed.   We  can  no  longer  have  a  statutory  scheme  that  requires 
Judges  to  ignore  disturbing  evidence  of  defendant  dangerousness 
and  we  must  do  more  to  assure  that  defendants  who  are  seeking 
release  meet  their  responsibility  to  appear  for  trial.   The  ball 
amendments  proposed  by  the  Administration,  and  other  similar  ball 
reform  legislation  introduced  again  this  year  in  the  Congress 
such  as  S.  215,  fulfill  these  needs  and  provide  a  framework  for 
the  courts  to  strike  an  appropriate  balance  between  the  l«sitl- 

7/  Attorney  General's  Task  Force  on  Violent  Crime, 
-  Washington, , D.C. ,  August  17,  19B1,  at  52. 

§/  In  fiscal  year  1982,  the  reversal  rate  for  federal  criminal 
cases  was  9.7%.   I9B2  Annual  Report,  supra  note  5  at  196. 


■at*  interests  of  the  defendant  and  the  equally  legitimate 
interests  of  the  public  in  preserving  the  integrity  of  our 
Judicial  system  and  protecting  community  safety. 


I.    Introduction 

The  sentence  in  a  criminal  case  is  imposed  at  the  end  of  a 
highly  structured  process  designed  to  assure  fairness  to  the 
defendant  and  to  the  public.   Ideally,  this  sentence  will 
represent  society's  statement  as  to  the  relative  seriousness  of 
the  defendant's  criminal  conduct,  and  will  deter  criminal  conduct 
by  others.   Unfortunately,  despite  the  best  efforts  of  the 
federal  criminal  justice  system  under  current  law,  the  sentence 
in  a  particular  criminal  case  frequently  fails  to  achieve  these 
goals.   This  is  true  in  large  measure  because  the  system  fails 
not  only  to  provide  appropriate  sentences  in  many  individual 
cases,  but  even  fails  to  provide  a  mechanism  that  might  be 
capable  of  consistently  achieving  such  a  result. 

In  the  last  ten  years  or  so,  a  consensus  has  developed  among 
persons  of  different  political  views  that  the  current  federal 
sentencing  system  is  riddled  with  serious  shortcomings.   More 
recently,  there  has  developed  substantial  sirpport  for  an  approach 
by'which  the  shortcomings  might  be  remedied  —  the  creation  of  a 
system  such  as  that  set  forth  in  title  II  of  S.  829,  a  system 
that  couples  sentencing  guidelines  with  determinate  sentencing. 
These  provisions  are  substantially  identical  to  sentencing 
provisions  approved  by  this  Committee  and  the  full  Senate  several 
times  since  the  enactment  of  S.  1437  in  1978,  most  recently  in 

the  past  Congress  with  the  repeated  approval  of  the  sentencing 
provisions  contained  in  S.  2572  and  added  by  the  Senate  to  H.R. 
3963.   These  provisions  also  formed  the  basis  of  a  sentencing 
reform  package  passed  by  the  State  of  Minnesota,  which  the 
National  Academy  of  Sciences  has  recently  reported  to  be  the  most 


■uccesaful  of  any  of  the  State  or  local  sentencing  reform 
efforts.   The  Minnesota  system,  while  providing  less 
sophisticated  guidelines  than  we  contemplate  for  the  federal 
system,  is  the  only  State  or  local  system  in  operation  that  is 
similar  to  this  proposal  in  every  significant  respect.   In 
addition,  I  was  pleased  to  note  that  the  Judicial  Conference  of 
the  Dnited  States  has  recently  proposed  legislation  that  contains 
a  form  of  determinate  sentencing  guidelines  system. 

II.   Sentencing  Onder  Current  Law  and  Practice 

A.    The  Sentencing  Process 

A  federal  judge  might  sentence  only  a  few  dozen 
offenders  a  year,  and  a  particular  offender  before  him  for 
sentencing  might  be  the  only  person  he  has  sentenced  in  a  year  or 
even  longer  for  committing  a  particular  offense.   The  judge, 
while  trained  in  the  law,  has  no  special  competence  in  imposing  a 
sentence  that  will  reflect  society's  values,  and  federal  statutes 
do  little  to  assist  in  correcting  this  problem. 

Current  federal  law  provides  a  sentencing  judge  with 
■the  discretion  to  impose  sentence  pursuant  to  numerous  sentencing 
options  and  little  or  no  guidance  as  to  how  to  choose  emiong  the 
options.   The  statutes  contain  no  statement  of  the  purposes  of 
sentencing,  aside  from  occasional,  vague  references  to 
rehabilitation,  and  no  direction  to  the  judges  as  to  the  offense 
and  offender  characteristics  that  should  be  considered  in 
determining  an  appropriate  sentence.   Federal  sentencing  law  is 
limited  mostly  to  the  provision  of  a  maximum  term  of  imprisonment 
and  maximum  fine  that  may  be  imposed  for  violating  a  particular 
criminal  statute,  and  these  maximum  sentences  only  indicate  the 
congressional  view  of  the  appropriate  sentence  for  the  most 
serious  offense  committed  by  an  offender  with  the  most  serious 
criminal  record. 


As  a  result  of  this  absence  of  guidance,  judges  are 
left  to  impose  sentences  according  to  their  own  notions  of  the 
purposes  of  sentences.   They  are  not  required  to  state  their 
reasons  for  choosing  a  particular  sentence,  and  many  of  them  do 
not.   Sentences  are  reviewcible  only  for  illegality  or  for 
constitutional  violation;  a  sentence  that  is  substantially  out  of 
proportion  to  those  for  similar  offenses  committed  by  similar 
offenders  is  not  otherwise  subject  to  challenge. 

B.    Sentencing  Options 

While  current  law  provides  sentencing  alternatives  of 
probation,  fines,  imprisonment,  and  restitution,  the  law  fails  to 
provide  a  mechanism  to  inform  sentencing  judges  how  they  should 
choose  sunong  them  and  fails  to  assure  that  each  option  is  useable 
to  serve  the  purposes  of  sentencing  in  the  best  way  possible. 

1.    Probation.  —  Probation  is  treated  as  a  suspension 
of  the  imposition  or  execution  of  a  sentence  rather  than  as  a 
sentence  itself.   Partly  for  that  reason  and  partly  because 
current  law  does  not  recommend  possible  probation  conditions  in 
any  detail,  there  has  been  little  incentive  to  impose  conditions 
on  probation  that  might  make  it  a  more  effective  punitive  or 
remedial  sanction  —  it  is  generally  viewed  solely  as  a  vehicle 
for  rehabilitative  efforts.   This  is  especially  troubling  because 
of  the  crowded  conditions  of  our  prisons.   As  the  Attorney 
General  has  stated  recently,  effective  use  of  probation 
conditions  for  many  non-violent  offenders  could  alleviate  much  of 
the  stress  on  our  prison  capacity  without  undermining  the 
desirability  of  imposing  prison  sanctions  in  appropriate  cases. 

'  2.    Fines.  —  The  maximum  fine  levels  for  criminal 
offenses  vary  inexplicably.   They  usually  also  reflect  penalty 
levels  of  a  century  or  more  ago,  and  today  are  much  too  low  to  be 
a  realistic  measure  of  the  seriousness  of  most  offenses.   They 
are  often  so  low  that  they  are  not  a  realistic  substitute  for  a 


term  of  imprisonment  when  the  nature  of  the  offense  might 
otherwise  justify  their  use.   Even  if  a  fine  is  imposed,  it  may 
be  difficult  to  collect  under  current  law,  which  relies  heavily 
on  cumbersome  and  inconsistent  state  collection  procedures. 

3.  Restitution.  —  The  newly  enacted  Victim  and 
Witness  Protection  Act  of  1982  contains,  as  you  know,  important 
new  provisions  for  restitution  to  victims  of  crime  in  many 
federal  criminal  cases.   Early  experience  with  the  provisions 
demonstrates  that  additional  guidance  as  to  how  to  determine  the 
amount  of  restitution  and  how  a  payment  schedule  might  be 
tallorei)  to  the  financial  situation  of  the  defendant  would  be 
helpful  to  sentencing  judges. 

4.  Impr i sonment .  —  Jlesponsibility  for  imposing  a 
term  of  imprisonment  and  determining  its  length  is  divided  today 
Joetween  the  judicial  and  executive  branches.   Under  a  two-step 
process,  the  sentencing  judge  imposes  a  term  of  imprisonment  and 
sets  the  outside  limit  of  the  period  of  time  a  defendant  may 
spend  in  prison,  and  then  the  Parole  Commission  decides  what 
portion  of  the  maximvim  term  the  defendant  will  actually  serve. 
This  practice  was  originally  based  on  an  outmoded  19th  Century 
rehabilitative  theory  that  has  proved  to  be  so  faulty  that  it  is 
no  longer  followed  by  the  criminal  justice  system  —  yet  the 
outmoded  process  remains  in  place  trying  as  best  it  can  to  use  a 
more  modern  approach  to  sentencing. 

Current  imprisonment  statutes  were  enacted  at  a 
time  in  which  the  criminal  justice  system  utilized  a  "medical 
model"  for  determining  when  a  prisoner  should  be  released. 
Criminality  was  viewed  as  a  disease  that  could  be  cured  through 
rehabilitative  programs  in  a  prison  setting.   While  the  purpose 
of  the  sentence  was  to  rehabilitate,  no  one  could  know  when  that 
reheOsilitation  would  occur.   Therefore,  a  defendant  was  sentenced 
to  a  term  of  imprisonment  intended  to  be  longer  than  the  time  it 
would  take  for  rehabilitation  to  occur.   Periodically,  parole 
authorities  would  examine  the  prisoner's  adaptation  to  the  prison 

128  ' 

Betting  in  order  to  determine  whether  he  had  been  rehabilitated 
and  could  be  released  into  society  before  the  expiration  of  his 
imposed  prison  term.  . 

There  are  two  principal  problems  with  this  theory: 
First,  many  sentences  to  terms  of  imprisonment  are  designed  to 
serve  purposes  other  than  or  in  addition  to  rehabilitation.   They 
may  be  designed  to  deter  future  criminal  conduct  by  the  defendant 
or  others,  to  protect  the  public  from  criminal  conduct  of  the 
defendant,  or  to  punish  the  defendant  for  his  conduct.   Periodic 
review  of  prisoh  behavior  is  irrelevant  to  any  of  these  purposes; 
a  sentence  for  any  of  these  purposes  logically  should  be  set  for 
a  definite  term. 

Second,  even  if  the  sentence  is  for  purposes  of 
rehabilitation,  the  theory  leading  to  an  indefinite  term  is 
unsound.   Behavioral  scientists  hiave  concluded  in  recent  years 
that  there  is  no  reliable  means  of  inducing  rehabilitation.   More 
importantly  to  consideration  of  this  theory,  they  have  also 
concluded  that  no  one  can  tell  from  a  prisoner's  behavior  in 
prison  or  before  a  parole  board  whether  or  when  he  has  become 
rehabilitated.   Consequently,  the  basic  reason  for  an 
indeterminate  sentence  and  thus  for  the  existence  of  parole 
boards  has  disappeared. 

The  federal  Parole  Commission  today  acknowledges 
that  it  cannot  tell  from  a  prisoner's  behavior  whether  or  when  he 
has  become  rehabilitated.   It  therefore  no  longer  even  attempts 
to  accord  its  practice  with  the  original  theory.   Instead,  with 
few  exceptions,  it  releases  prisoners  at  the  times  specified  by 
the  Commission's  self-developed  guidelines  —  guidelines  that  are 
based  upon  factors  known  at  time  of  sentencing.   Since  the 
Commission's  release  determinations  need  no  longer  await  an 
opportunity  to  observe  the  prisoner's  conduct  in  confinement, 
there  is  no  reason  why  the  Commission  cannot  inform  a  prisoner  of 
his  proposed  release  date  near  the  time  of  his  incarceration  — 
and  the  Commission  now  does  so  in  almost  all  cases. 


Thus  two  branches  of  government  —  at 
approximately  the  same  time  and  based  on  essentially  the  saxne 
information  —  set  two  different  sentences  to  be  served  by  the 
same  defendant,  with  one  of  these  sentences  publicly  announced 
and  the  lower  one  that  will  actually  be  served  announced  in 
private.    This  occurs  because  of  attempts  by  the  criminal 
justice  system  to  adapt  an  outmoded  mechanism  to  modern  thinking 
about  sentencing.   The  result  is  that  the  judges  attempt  to 
adjust  their  sentences  to  override  parole  guidelines  they  see  as 
inappropriately  harsh  or  lenient,  and  that  the  parole 
authorities,  in  attempting  to  even  out  the  resulting  disparity  in 
sentences,  regularly  ignore  the  actual  sentences  imposed  by 

5.    Specialized  sentencing  statutes.  —  Finally, 
current  law  contains  a  number  of  specialized  sentencing  statutes 
that  a  judge  may  use  in  sentencing  a  specific  category  of 
offenders,  such  as  young  offenders  or  drug  addicts.   These 
statutes  provide  little  guidance,  other  than  some  references  to 
reheibilitation,  as  to  when  a  judge  should  use  them  for  a  person 
in  the  category  of  offender  covered  by  the  statute  and  when  he 
should  not.   They  also  fail  to  take  into  account  the  fact  that  a 
particular  offender  may  belong  to  more  than  one  category  covered 
by  these  statutes. 

One  of  these  statutes,  the  Youth  Corrections  Act, 
has  caused  particular  difficulties.   Sentencing  judges  differ  as 
to  whether  it  should  be  used  at  all  for  violent  offenders.   Thus, 
similarly  situated  offenders  sentenced  by  different  judges  may  be 
sentenced  either  under  the  Act  or  to  a  regular  adult  sentence. 
Especially  since  the  parole  guidelines  generally  provide  less 
prison  time  for  persons  sentenced  under  the  Youth  Corrections  Act 
than  under  regular  adult  sentencing,  the  result  can  be  that  two 
young  offenders  with  similar  criminal  histories  who  are  convicted 
of  similar  violent  crimes  will  serve  different  prison  terms 
simply  because  they  were  sentenced  under  different  statutes. 


In  recent  years,  a  more  difficult  problem  has 
arisen  with  the  Youth  Corrections  Act  —  the  courts  have 
construed  the  Act  to  require  that  the  Bureau  of  Prisons  separate 
YCA  offenders  from  adult  offenders.   Prisons  officials  have  found 
the  results  of  complying  with  these  court  decisions  to  be 
undesirable.   Because  there  are  only  1200  YCA  offenders  now  in 
custody,  only  three  institutions  —  located  in  Petersburg, 
Virginia;  Englewood,  California;  and  Morgantown,  West  Virginia  — 
have  been  set  aside  to  house  them,  with  the  result  that  most  of 
these  young  offenders  must  be  placed  long  distances  from  their 
homes  and  families.   The  placement  of  all  YCA  offenders  in  three 
institutions  has  also,  in  effect,  negated  the  classification 
process  for  these  inmates.   The  Bureau  classifies  inmates  into 
six  categories,  with  level  one  representing  the  minimal  risk  and 
level  six  representing  the  maximum  risk.   The  result  of  placing 
these  offenders  in  three  institutions  is  a  mixing  of  the 
criminally  sophisticated  with  the  unsophisticated,  the  hardened 
with  the  naive,  the  assaultive  with  the  easily  victimized,  and 
the  first  time  offender  with  the  repeater.   The  distance  from 
home,  combined  with  the  limited  ability  to  separate  these 
prisoners  according  to  the  prisoner  classification  system, 
compounds  discipline  problems  with  managing  a  youthful  population 
more  prone  than  an  older  population  to  act  out  and  be  disruptive. 

The  Youth  Corrections  Act  should  be  repealed,  not 
only  because  age  is  only  one  factor  that  may  play  a  role  in 
determining  the  appropriate  sentence,  but  because  the  separate 
facilities  for  young  offenders  sentenced  under  the  Act  have 
proved  unworkable.   Thus,  the  Department  of  Justice  strongly 
disagrees  with  the  suggestion  of  the  Judicial  Conference  in  its 
proposed  bill  that  sentencing  judges  be  permitted  to  sentence 
young  offenders  to  separate  facilities. 


C.    Consequences  of  the  Current  System 

The  almost  inevitable  result  of  the  proliferation  of 
sentencing  options  and  the  lack  of  statutory  guidance  as  to  how 
to  use  them  is  considerable  disparity  in  sentences  imposed  by 
federal  judges.   This  disparity  has  been  documented  in  numerous 
studies,  including  one  conducted  by  the  Federal  Judicial  Center 
of  district  judges  in  the  Sc'cond  Circuit  and  a  more  recent  study 
conducted  for  the  Department  of  Justice  by  INSLAW,  Inc.  and 
Yankelovich,  Skelly  and  White,  Inc.   In  the  latter  study,  208 
federal  judges  were  presented  with  16  hypothetical  cases.   They 
agreed  in  only  3  of  16  cases  on  whether  to  sentence  the  defendant 
to  prison.   The  study  found  that  21  per  cent  of  sentence 
variation  was  due  to  the  tendency  of  some  judges  to  impose 
generally  harsher  or  more  lenient  sentences  than  other  judges, 
rather  than  to  differences  in  offense  or  offender 
characteristics,  and  that  even  more  variation  was  due  to  the 
tendency  of  a  particular  judge  to  impose  harsher  or  more  lenient 
sentences  than  other  judges  for  particular  classes  of  offenses  or 

Various  attempts  by  the  Parole  Commission  and  the 
judicial  branch  to  reduce  this  disparity  have  been  ineffective. 
The  parole  guidelines  have  served  to  reduce  disparity  in  terms  of 
imprisonment,  but,  as  a  recent  General  Accounting  Office  study 
shows,  they  have  not  been  fully  successful  in  doing  so.   And,  of 
course,  the  parole  guidelines  cannot  do  anything  about  a 
probationary  sentence  that  should  have  been  a  prison  sentence  or 
vice  versa,  or  about  an  inappropriate  level  of  fine  or 
restitution,  or  about  a  prison  term  that  makes  a  prisoner 
ineligible  for  parole  on  his  guidelines  date  or  results  in  his 
release  before  that  date. 

The  judicial  branch  now  supplies  sentencing  judges  with 
information  in  the  pre-sentence  report  concerning  the  parole 
guidelines  probably  applicable  to  the  defendant  and  the  kinds  and 


iMiftlia  of  ■•ntences  that  are  Imposed  nationwide  and  In  the 
judge's  district  for  the  defendant's  offense.   I  understand  that 
it  is  in  the  process  of  improving  its  data  colliection  to  include 
nore  detailed  information  on  sentences  imposed  on  persons  with 
particular  offense  and  offender  charajiteristlcs.   At  this  stage, 
the  information  is  useful  to  Inform  judges  of  past  sentencing 
practices;  it  is  not  designed  to  alter  those  practices  that  need 
to  be  altered  to  assure  that  they  adequately  reflect  sentencing 

The  perception  of  sentencing  disparity  has  serious 
consequences  for  the  public  and  the  criminal  justice  system.   It 
tends  to  encourage  defendants  to  relitigate  their  guilt 
continually.   Combined  with  the  artificial  process  by  which 
judges  Impose  long  prison  terms  and  parole  authorities  set  early 
release  dates  shortly  thereafter,  it  serves  to  undermine  public 
confidence  in  the  criminal  justice  system,  thus  robbing  the 
system  of  some  of  its  potential  deterrent  effect. 

III.  Sentencing  Under  Title  II  of  the  Bill 

Title  II  of  the  bill  would  completely  revise  current  law  to 
legislate  the  purposes  of  sentencing,  to  create  a  mechanism  to 
assure  rationality  and  fairness  in  sentences  designed  to  carry 
out  those  purposes,  and  to  provide  appellate  review  of  sentences 
to  assure  their  legality  and  reasonableness. 

A.    Legislatively  Prescribed  Purposes 

Title  II  would  for  the  first  time  give  legislative 
recognition  to  the  appropriate  purposes  of  sentencing.   The 
stated  purposes  specifically  Include  reflecting  the  seriousness 
of  the  offense  and  just  punishment,  deterrence  of  criminal 
conduct,  protection  of  the  public  from  further  crimes  of  the 
defendant,  and  providing  rehabilitation  programs  in  the  most 
effective  manner.   The  bill  deliberately  does  not  favor  one 
purpose  over  another,  since  any  one  of  these  purposes  may  be  the 


major  purpose  of  a  sentence  in  any  given  case.   For  example,  the 
the  major  purpose  of  a  sentence  to  imprisonment  for  a  violent 
offender  may  be  just  punishment  while  the  major  purpose  of  a 
sentence  to  probation  conditioned  on  obtaining  mental  health 
treatment  for  a  non-violent  offender  may  be  rehabilitation.   The 
bill  does  recognize  that  rehabilitation  should  not  be  the 
purpose  of  sentencing  a  defendant  to  imprisonment  nor  a  factor  in 
determining  the  length  of  a  prison  term.   Of  course,  this  does 
not  mean  that  the  Department  will  not  continue  to  make  every 
effort  to  provide  suitable  rehabilitation  programs  to  prisoners 
in  its  custody.   It  is  simply  unfair  to  send  a  person  to  prison 
for  rehabilitation  or  base  the  length  of  that  term  on  whether  he 
is  rehabilitated  when  we  recognize  that  no  one  knows  when  or 
whether  a  prisoner  has  been  rehabilitated. 

B.    The  Sentencing  Process 

The  sentencing  judge  would  impose  sentence  after 
considering  the  purposes  of  sentencing  and  sentencing  guidelines 
promulgated  by  a  commission  in  the  judicial  branch  that  would 
recommend  an  appropriate  kind  and  range  of  sentence  for  each 
combination  of  offense  and  offender  characteristics.   The  judge 
would  be  required  to  impose  sentence  in  accord  with  the 
guidelines  recommendation  unless  he  found  that  a  factor  in  the 
case  was  not  adequately  considered  in  the  guidelines  and  should 
affect  the  sentence.   If  the  judge  imposes  sentence  outside  the 
guidelines,  he  must  state  specific  reasons  for  doing  so.   The  . 
question  whether  the  sentence  is  reasonable  is  subject  to 
appellate  review  at  the  request  of  the  defendant  if  the  sentence 
is  above  the  guidelines  and  at  the  request  of  the  government, 
made  on  behalf  of  the  public  and  personally  approved  by  the 
Solicitor  General  or  the  Attorney  General,  if  it  is  below  the 
guidelines.   If  the  sentence  was  to  a  term  of  imprisonment,  the 
term  imposed  by  the  judge  would  represent  the  actual  time  served 
less  a  small  amount  of  credit  that  could  be  earned  for  complying 
with  institution  rules.   The  Parole  Commission  and  its  function 


of  Betting  release  dates  would  be  abolished,  and  the  current 
practice  of  judges  artificially  inflating  prison  terms  because  of 
the  parole  system  would  be  eliminated.   If  the  sentencing  judge 
thought  a  defendant  would  need  street  supervision  following  his 
tern  of  imprisonment,  he  could  impose  a  term  of  supervised 
release  to  follow  the  term  of  imprisonment. 

Sentencing  guidelines  and  policy  statements  would  be 
promulgated  by  a  United  States  Sentencing  Commission  in  the 
judicial  branch.   The  Commission  would  consist  of  seven  members 
who  would  be  appointed  by  the  President  by  and  with  the  advice 
and  consent  of  the  Senate,  after  the  President  had  consulted  with 
judges,  prosecutors,  defense  counsel,  and  others  interested  in 
the  criminal  justice  system  for  their  recommendations.   The 
Commission  members,  including  any  members  from  the  federal 
judiciary,  would  serve  full  time  and  would  be  paid  at  the  rate  of 
judges  of  the  federal  appellate  courts.   The  bill  provides  for  a 
staff  of  highly  qualified  professionals  for  the  Commission,  and 

directs  that  the  Commission,  in  addition  to  promulgating 
guidelines,  engage  in  sentencing  research  and  training. 

C.    Sentencing  Options 

Each  of  the  sentencing  options  would  be  improved  under 
title  II  —  and  the  sentencing  guidelines  will  enable  the  system 
to  make  the  most  effective  use  of  these  improved  sentencing 

1.    Probation.  —  Probation  would  become  a  sentence  in 
itself,  rather  than  a  deferral  of  imposition  or  execution  of 
another  form  of  sentence.   If  a  sentencing  judge  imposed 
probation  in  a  felony  case,  he  would  be  required  to  impose,  at  a 
minimum,  a  condition  that  the  defendant  pay  a  fine  .or  restitution 
or  engage  in  community  service.   In  addition,  the  judge  would  be 
required  to  impose  as  a  condition  of  probation  in  every  case  a 
prohibition  against  committing  a  new  offense.   The  bill  also 


lists  a  niunber  of  new  conditions  that  may  be  imposed  on  s 
sentence  of  probation  for  consideration  of  the  Sentencing 
Commission  and  the  judges. 

2.  Fines.  —  Title  II  significantly  increases  maximum 
fine  levels  for  most  federal  offenses.   The  maximums  are 
increased  to  a  quarter  of  a  million  dollars  for  an  individual 
convicted  of  a  felony  and  half  a  million  dollars  for  «n 
organization  convicted  of  a  felony.   The  amount  within  that 
maximum  will  be  determined  according  to  the  sentencing  guidelinas 
and  will  be  based  in  part  on  the  defendant's  ability  to  pay  and 
the  seriousness  of  the  offense.   Fine  collection  procedures  will 
be  improved  by  permitting  reliance  on  lien  procedures  patterned 
after  the  federal  tax  laws. 

3.  Restitution.  —   Restitution  provisions  are 
substantially  similar  to  the  provisions  in  the  Victim  and  Witness 
Protection  Act  of  1982,  with  the  provisions  dovetailed  into  the 
new  sentencing  provisions.   This  will  permit  the  sentencing 
guidelines  and  policy  statements  to  provide  more  detail  than  is 
present  in  current  law  as  to  how  the  amount  of  restitution  should 
be  calculated  and  methods  by  which  restitution  can  be  imposed  so 
that  it  can  be  paid,  for  example,  in  installments  if  the 
defendant  is  a  salaried  en^loyee.   S.  829  also  provides  for 
government  assistance  in  collecting  unpaid  restitution,  a  measure 
we  believe  will  improve  the  enforceability  of  an  order  of 

4.    Imprisonment.  —  As  discussed  earlier,  title  II 
completely  changes  the  way  in  which  the  length  of  a  term  is 
imposed,  abolishing  early  release  on  parole  and  converting  to  a 
system  i»i  which  the  sentence  imposed  by  the  judge  represents  the 
actual  time  to  be  served  less  good  time. 

It  should  be  noted  that  S.  829  differs  from  the 
sentencing  provisions  in  S.  668  and  S.  830  in  two  respects. 


First,  it  extends  slightly  the  maximvun  terms  of  imprisonment  that 
may  be  imposed  for  a  particular  grade  of  offense.   This  will  give 
the  Sentencing  Commission  more  flexibility  in  fashioning 
sentencing  recommendations  for  the  most  serious  offenses. 
Second,  S.829  does  not  provide  for  a  repeated  reexamination  by 
the  courts  of  long  sentences.   The  Department  of  Justice  is  of 
the  view  that  such  a  provision  only  serves  to  create  unnecessary 
and  time-consuming  court  hearings  that  are  contrary  to  the 
purpose  of  creating  a  system  in  which  final  sentences  are 
publicly  announced  at  the  time  of  sentencing.   The  defendant  will 
have  had  an  earlier  opportunity  to  appeal  his  sentence  if  it  is 
unusually  high,  and  we  believe  that  one  review  is  sufficient.   S. 
829,  like  the  other  bills,  does  permit  reexamination  of  a 
sentence  in  other  limited  circumstances.   The  Bureau  of  Prisons 
may  request  reduction  of  a  sentence  for  extraordinary  and 
compelling  reasons,  such  as  terminal  illness.   In  addition,  if 
the  sentencing  guidelines  for  a  particular  offense  are  lowered 
and  it  is  consistent  with  a  policy  statement  of  the  Sentencing 
Commission,  the  court,  on  its  own  motion  or  at  the  request  of  the 
defendant  or  the  Bureau  of  Prisons,  may  reduce  the  sentence  of  a 
defendant  sentenced  under  the  old  guidelines.   We  believe  these 
limited  opportunities  to  change  sentences  are  sufficient  to 
assure  reconsideration  of  sentence  whenever  justified. 

5.    Specialized  sentencing  statutes.  —   S.  829  would 
repeal  all  the  specialized  sentencing  statutes  that  create 
proviaions  applicable  to  only  one  category  of  offender.   The 
guidalincs  system  is  a  far  preferable  method  of  determining  an 
appropriate  -sentence  for  offenders  with  particular 
characteristics  since  it  provides  for  systematic  consideration  of 
all  offender  characteristics  at  the  same  time  rather  than  one 
isolated  characteristic. 

D.   Advantages  of  Title  II  Over  Current  Law 

Title  II  provides  numerous  advantages  over  currant  law.   The 
Boct  la^pertant  of  these  is  that  it  will  provide  a  sentsncing 


mechanism  whose  purpose  is  to  assure  both  fair  sentences  and  the 
appearance  of  fail  sentences.   The  sentencing  guidelines  will 
enable  the  sentencing  judges  to  determine  an  appropriate  sentence 
for  a  defendant  with  a  particular  criminal  history  convicted  of  a 
particular  offense,  knowing  that  the  sentence  is  fair  as  compared 
to  the  sentences  for  all  other  offenders.   Everyone,  including 
the  defendant,  the  public,  and  those  in  the  criminal  justice 
system  charged  with  implementing  the  sentence,  will  know  at  the 
time  of  sentencing  exactly  what  the  sentence  is  and  why  it  was 
imposed.   The  characteristics  of  the  offense  and  the  offender 
that  result  in  a  sentence  different  from  that  for  another 
offender  will  be  apparent  —  and  if  a  sentence  is  inappropriate, 
it  can  be  corrected  on  appeal.   The  appeal  mechanism  has  another 
advantage  over  current  law  —  it  will  result  in  the  development 
of  a  body  of  case  law  concerning  whether  particular  reasons 
legally  justify  imposing  sentences  outside  the  guidelines.   The 
bill  permits  not  only  defendant  appeal  of  an  unusually  high 
sentence  but  government  appeal  of  an  unusually  low  one. 
Government  appeal  of  sentence  —  which  is  clearly  constitutional 
under  the  case  law  and  is  supported  by  the  Judicial  Conference 
assures  that  balanced  case  law  will  develop  on  questions  of  the 
appropriateness  of  sentencing  either  above  or  below  the 

Title  II  also  makes  the  sentencing  options  available  to  a 
judge  more  effective.   In  particular,  it  makes  probation  and 
fines  more  useable  as  options  to  incarceration  in  appropriate 
cases.   This  usefulness  is  enhanced  by  placing  these  options  in  a 
sentencing  guidelines  system  that  will  recommend  when  their  use 
is  appropriate  and  when  it  is  not. 

Title  II  should  also  save  the  government  money  after  the 
initial  start-up  phase.   It  replaces  the  expensive  and  cumbersome 
parole  system  with  a  small  Sentencing  Commission  that  will  not  be 
Involved  in  individual  cases.   It  may  reduce  somewhat  the 
rep«at*d  challenges  to  a  conviction  caused  by  the  fact  that  a 

25-694  0-84-10 


defendant  thinks  his  sentence  is  too  high.   It  may  also  reduce 
the  caseload  of  probation  officers,  since  it  will  not 
automatically  result  in  post-release  supervision  of  an  offender 
if  such  supervision  is  unnecessary. 

Before  closing  the  discussion  of  title  II,  I  should  note 
that  the  Department  welcomes  the  support  of  the  Judicial 
Conference  of  the  United  States  of  some  form  of  determinate 
sentencing  guidelines  system  with  appellate  review  of  a  sentence 
outside  the  guidelines.   However,  the  Department  wishes  to  note 
particular  disagreement  with  two  major  substantive  points  of  the 
Judicial  Conference  proposal.   First,  the  Department  would  make 
the  Sentencing  Commission  a  full-time  body  with  members  selected 
after  participation  by  all  three  branches  of  government  rather 
than,  as  proposed  by  the  Judicial  Conference,  a  part-time  body 
selected  only  by  the  judicial  branch.   We  believe  that  it  is 
important  that  the  work  of  the  sentencing  guidelines  agency  be 
carried  out  by  a  highly  visible  entity  that  is  able  to  devote  its 
full  energies  to  creation  of  sound  federal  sentencing  policy  — 
and  that  this  is  especially  important  at  the  initial  stages  of 
guidelines  development  and  implementation. 

Second,  we  disagree  with  the  intriguing  suggestion  of  the 
Judicial  Conference  that  the  Parole  Commission  be  retained  with  a 
substantially  altered  role.   Under  the  proposal,  the  judge,  after 
considering  sentencing  guidelines,  would  set  both  the  parole 
eligibility  date  for  a  convicted  defendant  sentenced  to  prison 
and  his  maximum  term  of  imprisonment.   The  defendant  would  be 
released  on  his  parole  eligibility  date  unless  the  Parole 
Commission  determined  tRat  he  had  not  substantially  complied  with 
prison  rules,  in  which  case  the  Parole  Commission  would  set  a 
release  date  within  the  maximum.   The  Parole  Commission  would  set' 
conditions  of  parole  release  and  would  determine  the  consequences 
of  parole  violations.   These  provisions  would,  in  effect,  keep  an 
expensive  and  cumbersome  agency  in  existence  primarily  to  carry 


out  a  function  that  the  Bureau  of  Prisons  perfonns  today  and 
should  continue  to  perform  —   that  of  determining  credit  toward 
service  of  sentence  for  good  behavior.   In  addition,  the  proposal 
seems  to  perpetuate  a  problem  with  current  law:  the  person  who 
receives  street  supervision  following  his  time  in  prison  is  the 
one  who  has  time  remaining  on  hie  sentence  rather  than 
necessarily  the  person  who  needs  supervision,  and  the  better  the 
prisoner  complies  with  prison  rules  the  longer  his  street 
supervision.   The  result  is  a  waste  of  resources  on  supervising 
defendants  who  may  not  need  it  at  the  same  time  the  system  fails 
to  supervise  others  who  should  be  supervised. 

IV.   Conclusion 

The  Administration  strongly  recommends  the  passage  of  title 
II  of  S.  829.   We  do  have  a  number  of  minor  technical  suggestions 
that  we  would  like  to  submit  to  the  Subcommittee  shortly. 

TITLE  III  -  The  Exclusionary  Rule 

Title  III  of  the  bill  sets  oiir  a  modification  of  the  Fourth 
Amendment  exclusionary  rule  to  restrain  it  to  its  proper  role, 
namely  deterring  unlawful  police  conduct.   Our  proposal  is 
identical  to  that  submitted  by  the  Administration  and  introduced 
by  Chairman  Thurmond  as  S.  2231  in  the  97th  Congress.   Our 
proposal  is,  simply,  that  the  exclusionary  rule  would  not  be 
applied  in  cases  in  which  the  law  enforcement  officers  who 
conducted  the  search  acted  in  a  reasonable  good  faith  belief  that 
their  actions  were  lawful. 

Before  discussing  this  proposal  in  greater  depth,  I  would 
like  to  discuss  the  origin  and  development  of  the  rule  and  some 
specific  cases  which  illustrate  the  very  real  contemporary 
problems  created  by  the  rule  in  quite  a  large  number  of  cases. 
At  the  outset,  however,  I  think  it  is  important  to  address  one  of 
the  most  seriously  misplaced  arguments  raised  in  the  current 
debate  over  the  rule,  the  impact  of  the  rule  on  the  criB«  rate. 


Supporters  of  the  rule  claim  that  advocates  for  modification  of 
the  present  rule  argue  incorrectly  that  reforming  the  rule  will 
reduce  the  crime  rate.   The  fact,  however,  is  that 'advocates  for 
reform  do  not  claim  that  any  such  change  is  a  panacea  for  crime 
rate  reduction.   Any  thoughtful  consideration  of  contemporary 
crime  must  recognize,  unfortunately,  that  there  is  no  single 
panacea.   On  the  other  hand,  advocates  for  reform  do  point  out 
that  the  rule  operates  to  free  known  murderers,  robbers,  drug  • 
traffickers  and  other  violent  and  non-violent  offenders  and  .that 
a  rule  of  evidence  which  has  such  a  result  without  a  reasonable 
purpose  to  support  it  is  intolerable. 

These  heavy  costs  extracted  from  society  by  the  rule  have 
not  gone  unnoticed  by  the  Supreme  court.   In  Stone  v.  Powell ,  428 
U.S.  465,  490  (1975),  the  Court  stated  that  the  rule  "deflects 
the  truthfinding  process  and  often  frees  the  guilty."   The  Court 
has  noted  that  its  "cases  have  consistently  recognized  that 
unbending  application  of  the  exclusionary  sanction  to  enforce 
ideals  of  governmental  rectitude  would  impede  unacceptably  the 
truthfinding  functions  of  the  Judge  and  jury."  United  States  v. 
Payner,  44?  U.S.  727,  734  (198O).   The  Court's  recognition  of  the 
price  exacted  by  the  rule  now  causes  it  to  answer  the  question  of 
whether  the  rule  should  be  applied  in  a  particular  context  "by 
weighing  the  utility  of  the  exclusionary  rule  against  the  costs 
of  extending  it..."   Stone  v.  Powell,  supra  at  489. 
The  Rule  and  its  Development 

In  tracing  the  development  of  the  rule  it  is  important  at 
the  outset  to  recall  the  specific  words  of  the  Fourth  Amendment 
upon  which  the  rule  is  based:   "The  right  of  the  people  to  be 
secure  in  their  persons,  houses,  papers,  and  effects,  against 
unreasonable  searches  and  seizures,  shall  not  be  violated." 

It  is  apparent  that  the  "exclusionary  rule"  itself  is  not 
articulated  in  the  Fourth  Amendment  or,  for  that  matter,  in  any 
part  of  the  constitution,  the  Bill  of  Rights,  or  the  federal 
criminal  code.   The  exclusionary  rule  is,  rather,  a  judicially 


declared  rule  of  law  created  In  191'^.  when  the  United  States 
Supreme  Court  held  In  Weeks  v.  United  States,  232  U.S.  383,  that 
evidence  obtained  in  violation  of  the  Fourth  Amendment  is 
inadmissible  in  federal  criminal  prosecutions. 

This  doctrine  was  criticized  by  many  commentators  from  the 
start,  but  the  rule  became  firmly  implanted  in  the  federal 
criminal  justice  system.   The  states,  however,  were  divided  In 
their  opinion  of  the  rule.   In  the  three  decades  following  Weeks, 
sixteen  states  adopted  the  rule  while  thirty-one  states  refused 
to  accept  it. 

It  was  not  until  19t9  that  the  Supreme  court  was  squarely 
confronted  with  the  question  of  whether  the  exclusionary  rule 
should  be  applied  to  state  criminal  prosecutions.   In  Wolf  v. 
Colorado,  338  U.S.  25  (19^9),  the  court. held  that  although  the 
guarantees  of  the  Fourth  Amendment  applied  to  the  states  through 
the  due  process  clause  of  the  Fourteenth  Amendment,  the  Four- 
teenth Amendment  did  not  forbid  the  admission  of  evidence 
obtained  by  an  unreasonable  search  and  seizure.   Later,  in  Mapp 
V.  Ohio,  367  U.S.  6'43  (1961),  the  Court  reversed  its  decision  in 
Wolf  and  held  that  because  the  Fourth  Amendment  right  of  privacy 
was  enforceable  against  the  states  through  the  Fourteenth 
Amendment,  "it  is  enforceable  against  them  by  the  same  sanction 
of  exclusion  as  is  used  against  the  Federal  Government." 

When  first  imposed  by  the  Supreme  Court  In  191t,  the 
exclusionary  rule  was  justified  both  as  a  means  of  deterring 
unlawful  police  misconduct  and  on  a  judicial  integrity  ground, 
which  sought  to  prevent  courts  from  being  accomplices  in  willful 
constitutional  violations.   Over  time,  it  has  become  clear  that 
the  deterrence  rationale  is  the  foremost  reason  behind  the  rule. 
Cases  such  as  Stone  v.  Powell ,  supra,  Michigan  v.  DeFilllppo,  4M3 
U.S.  31  (1979),  United  States  v.  Peltier,  H22   U.S.  531  (1975), 
and  United  States  v.  Calandra,  41M  U.S.  338  (1974),  have  clearly 
established  that  today  the  rule  will  be  invoked  to  protect  Fourth 
Amendment  rights  only  when  to  do  so  is  deemed  efficacious  as  a  • 
deterrent  to  unlawful  conduct  by  law  enforcement  authorities.   In 
consistently  focusing  on  the  deterrence  rationale  in  defining  and 
limiting  the  application  of  the  rule,  the  Court  has  all  but 


ignored  the  judicial  integrity  ground.   At  any  rate,  to  the 
extent  that  notions  of  "judicial  integrity"  are  still  a  basis  for 
the  rule's  retention,  the  Supreme  Court  in  Peltier,  supra,  has 
stated  that  "the  'imperative  of  judicial  integrity'  is  also  not 
offended  if  law  enforcement  officials  reasonably  believed  in  good 
.faith  that  their  conduct  was  in  accordance -with  the  law..."   422 
U.S.  531,  537-38. 

Although  the  Court  recognizes  deterrence  as  the  rule's 
paramount  purpose,  it  has  not  limited  the  rule  only  to  those 
situations  in  which  the  law  enforcement  officer's  conduct  is 
susceptible  to  being  deterred.   For  example,  courts  continue  to 
suppress  evidence  seized  by  law  enforcement  officers  during 
searches  conducted  pursuant  to  duly  authorized  warrants  obtained 
in  good  faith  but  later  found  defective  by  an  appellate  court. 
Such  was  the  situation  in  United  States  v.  Alberto  Antonio  Leon 
(9th  Cir.  Mar.  4,  1983)-   In  that  recent  case,  an  informant 
advised  police  officers  that  he  had  seen  two  named  persons 
selling  drugs  from  their  residence  five  months  before.   On  the 
basis  of  that  tip,  the  police  conducted  a  one-month  surveillance 
of  the  two  people  and  their  residence.   The  surveillance  event- 
ually expanded  to  cover  two  other  residences  and  other  persons 
with  whom  the  two  earlier  identified  people  had  been  associating, 
the  circumstances  strongly  suggesting  that  all  persons  and 
residences  were  involved  in  narcotics  trafficking.   After 
consulting  with  three  assistant  district  attorneys,  the  police 
obtained  warrants  from  a  state  court  judge  for  the  search  of  the 
residences  and  various  automobiles  belonging  to  the  suspects. 
The  searches  produced  narcotics  and  narcotics  paraphernalia. 

The  defendants  were  charged  with  various  drug  violation's  but 
a  district  judge  ruled  that  the  search  warrants  were  defective 
because  the  informant's  information  was  probably  stale.   Much  of 
the  evidence  obtained  by  the  search  was  suppressed.   The  Ninth 
Circuit  affirmed  over  the  objection  of  Justice  Kennedy,  who 
observed  In  his  dissenting  opinion  that  the  affidavit  in  support 
of  the  warrants  "sets  forth  the  details  of  a  police  investigation 
conducted  with  care,  diligence,  and  good-faith." 


United  States  v. Shorter,  600  F.2d  585  (6th  Cir.  1979),  !• 
another  example  of  the  exclusionary  rule  being  applied  where  an 
authorized  search  warrant  Is  Invalidated  by  a  second  Judge  or 
court.   In  that  case,  local  police  and  agents  of  the  Federal 
Bureau  of  Investigation  (FBI)  arrested  a  suspected  Ohio  bank 
robber  at  his  home.   After  the  arrest,  the  FBI  agent  telephoned  a 
federal  magistrate  and  stated  his  grounds  for  a  search  warrant 
which  was  then  issued  by  the  magistrate  as  permitted  by  law.   The 
subsequent  search  produced  incriminating  evidence,  including  bait 
bills  and  a  firearm.   The  trial  Judge  ruled  the  search  lawful, 
but  the  conviction  was  reversed  on  appeal.   The  appellate  court 
decided  that  although  the  officer  had  in  fact  been  placed  under 
an  oath  by  the  magistrate  which  incorporated  all  the  testimony 
already  provided  in  the  course  of  reciting  the  grounds  for  the 
warrant,  the  failure  of  the  magistrate  to  require  the  oath  at  the 
beginning  of  the  telephone  conversation  violated  the  law  because 
the  applicable  Federal  Rule  requires  that  the  oath  be  obtained 

These  cases  involved  disagreements  between  judges  about 
Judicial  conduct  —  there  is  no  police  misconduct  involved.   The 
police  were  carrying  out  their  duties  as  society  expects  them  to 
do:   the  officers  provided  their  information  fully  and  honestly 
to  the  court  and  proceeded  to  carry  out  the  orders  of  the  court 
once  the  warrants  were  issued.   Suppression  of  evidence  in 
Instances  such  as  these  does  not  serve  the  purpose  of  the 
exclusionary  rule,  the  deterrence  of  police  misconduct.   In  fact, 
it  only  serves  to  damage  both  a  community's  perception  of  Justice 
and  the  morale  of  law  enforcement  officers  who  have  followed  the 
rules  only  to  have  the  evidence  suppressed  on  the  premise  that 
they  have  violated  the  Constitution.   Proper  police  conduct  is 
thereupon  falsely  labeled  as  illegal. 

The  deterrent  purpose  of  the  exclusionary  rule  also  is  not 
served  when  courts  apply  the  rule  to  situations  where  the 
appellate  court  cases  are  not  at  all  clear,  where  the  law  is 
thoroughly  confused  or  even  in  situations  where  the  cases  are  in 
flat  contradiction.   Police  often  are  confronted  with  the 


question  of  whether  to  conduct  a  warrantless  search  in  the  field 
when  the  circumstances  they  are  facing  are  not  covered  by 
existing  case  law. 

For  example,  the  rule  was  applied  in  precisely  this  type  of 

situation  in  Bobbins  v.  California,  U.S.  ,  101  S.  Ct .  2842 

(1981).   In  that  case,  the  Court  excluded  evidence  of  a  substan- 
tial quantity  of  marihuana  found  in  a  car  trunk  in  a  decision 
largely  based  on  two  previous  cases,  United  states  v.  Chadwick, 
433  U.S.  1  (1977)  and  Arkansas  v.  Sanders,  MH2  U.S.  753  (1979), 
neither  of  which  had  been  decided  at  the  time  of  the  search  in 
Bobbins  in  1975.   On  the  very  same  day,  the  Court  decided  another 

case,  Hew  York  v.  Belton,  U.S.  ,  101  S.  Ct .  2860  which  was 

remarkably  similar  factually.   In  both  oases,  police  officers 
lawfully  stopped  a  car,  smelled  burnt  marihuana,  discovered 
marihuana  in  the  passenger  compartment  of  the  car,  and  lawfully 
arrested  the  occupants.   Thereafter,  in  Bobbins ,  the  officer 
found  two  packages  wrapped  in  green  opaque  paper  in  the  recessed 
rear  compartment  of  the  car,  opened  them  without  a  warrant,  and 
found  30  pounds  of  marihuana.   In  Belton,  the  officer  found  a 
jacket  in  the  passenger  compartment,  unzipped  the  pocket  without 
a  warrant,  and  found  a  quantity  of  cocaine. 

Both  cases  required  an  analysis  of  the  "automobile  excep- 
tion" cases,  such  as  Chadwick,  which  pertain  to  the  validity  of 
warrantless  searches  of  cars  and  their  contents.   When  the  Court 
announced  its  decisions  in  Belton  and  Bobbins,  three  justices 
opined  that  both  searches  were  legal;  three  Justices  opined  that 
both  were  Illegal;  and  three  justice  controlled  the  ultimate 
decision  that  Bobbins  was  illegal  and  Belton  was  legal.   When 
Bobbins  was  finally  decided,  11  judges  had  reviewed  the  search. 
Seven  found  it  valid  and  seven  invalid. 

Moreover,  the  decisions  hardly  clarified  the  law  of  search 
and  seizure  in  this  area.   As  stated  by  Justice  Brennan  in  his 
dissent  in  Belton: 

"The  Co,urt  does  not  give  the  police  any  'bright 

line'  answers  to  these  questions.   More  important, 

bsoausa  the  Court's  new  rule  abandons  the  justifica- 


tions  underlying  Chimel ,  It  offers  no  guidance  to  the 

police  officer  seeking  to  work  out  these  answers  for 

It  was  not  surprising,  therefore,  that  the  whole  field  of  law 
involved  in  these  cases  was  again  before  the  United  States 
Supreme  Court  less  than  a  year  later  in  United  States  v.  Ross , 

U.S.  ,  102  S.  Ct.  2157  1982).   In  that  case,  which 

involved  the  search  of  a  brown  paper  bag  containing  heroin  found 
in  a  car's  truck,  the  Court  repudiated  the  holding  in  Robbins  and 
held  that  the  "automobile  exception"  to  the  Fourth  Amendment 
allows  police"  who  have  lawfully  stopped  a  vehicle  which  they 
reasonably  believe  to  contain  contraband  to  conduct  a  warrantless 
search  of  any  part  of  it,  including  all  containers  and  packages, 
in  which  the  contraband  may  be  concealed. 

Thus,  the  rule  of  law  with  respect  to  container  searches  in 
automobiles  has  apparently  been  finally  made  clear.   Meanwhile, 
however,  the  defendant  in  Robbins  who  possessed  thirty  pounds  of 
marihuana,  went  free  because  the  police  at  the  time  of  the  search 
did  not  apply  the  law  as  it  would  be  applied  at  the  moment  the 
Supreme  Court  considered  the  Robbins  case.   It  is  probably  a 
small  consolation  for  the  police  in  that  situation  that  their 
view  of  the  law  was  ultimately  borne  out  in  a  subsequent  case. 
To  say  that  the  suppression  of  reliable,  trustworthy,  evidence  in 
such  a  case  helps  to  prevent  police  "misconduct"  is  absurd. 

The  consequence  of  applying  the  exclusionary  rule  in  the 
cases  discussed  above  is  two-fold.   First,  the  purpose  of  the 
exclusionary  rule  is  not  served  when  the  officers  believe,  in 
good  faith,  that  they  are  performing  a  lawful  search.   When  law 
enforcement  officers  obtain  a  warrant  in  good  faith  or  when  they 
make  a  reasonable,  good  faith  attempt  to  predict  the  decisions 
that  future  courts  will  make,  there  exists  no  logical  basis  for 
excluding  the  evidence  they  have  gathered.   Applying  the  rule  in 
these  cases  fails  to  further  in  any  degree  the  rule's  deterrent 
purpose,  since  conduct  reasonably  engaged  in,  in  good  faitff,  is 
by  definition  not  susceptible  to  being  deterred  by  the  imposition 
of  after-the-fact  evidentiary  sanctions. 


(Second ,  application  of  the  exclusionary  rule  when  the  police 

have  acted  reasonably  and  in  good  faith  results  in  attaching  a 

false  label  to  proper  police  conduct.   This  adversely  affects  the 

criminal  justice  system  by  fostering  the  public  perception  that 

police  are  engaged  in  lawless,  improper  conduct  when  that  is 

simply  not  the  case.   The  Supreme  Court  recognized  these  effects 

in  Stone  v.  Powell,  428  U.S.  1(65  (1976),  in  which  it  stated: 

The  disparity  in  particular  cases  between  the  error 
committed  by  the  police  officer  and  the  windfall 
afforded  a  guilty  defendant  by  application  of  the  rule 
is  contrary  to  the  idea  of  proportionality  that  is 
essential  to  the  concept  of  justice.   Thus,  although 
the  rule  is  thought  to  deter  unlawful  police  activity 
in  part  through  the  nurturing  of  respect  for  Fourth 
Amendment  values,  if  applied  indiscriminately  it  may 
well  have  the  opposite  effect  of  generating  disrespect 
for  the  law  and  the  administration  of  justice. 

The  unjustified  acquittals'  of  guilty  defendants  due  to 
application  of  the  exclusionary  rule  has  resulted  in  a  growing  • 
concern  by  our  citizens  that  our  system  of  justice  is  lacking  in 
sense  and  fairness.   Unfortunately,  it  seems  unlikely  that  any  of 
these  conceptions  by  the  public  will  change  as  long  as  the 
exclusionary  rule  remains  in  its  present  form  and  courts  continue 
to  expand  its  application  to  situations  where  law  enforcement 
conduct  has  been  manifestly  reasonable.  ' 

Proposed  Legislation  Modification 

The  specific  action  we  suggest  in  the  area  of  legislative 

limitation  of  the  rule,  as  contrasted  to  legislative  abolition  of 

the  rule,  is  based  upon  a  recent  significant  opinion  on  the  rule 

rendered  by  the  Fifth  Circuit.   In.  United  States  v.  Williams,  622 

F.2d  830  (5th  Cir.  1980),  the  Fifth  Circuit,  after  an  exhaustive 

analysis  of  the  relevant  Supreme  Court  decisions,  announced  a 

construction  of  the  exclusionary  rule  that  would  allow  admission 

at  trial  of  evidence  seized  during  a  search  undertaken  in  a 

reasonable  and  good  faith  belief  on  the  part  of  a  federal  officer 

that  his  conduct  was  lawful.   A  majority  of  the  24  judges  of  that 

court,  sitting  en  banc ,  concurred  in  an  opinion  that  concluded  as 

follows  (Id.  at  846-847): 

Henceforth  in  this  circuit,  when  evidence  is  sought  to 
be  excluded  because  of  police  conduct  leading  to  its 
discovery,  it  will  be  open  to  the  proponent  of  the 
evidence  to  urge  that  the  conduct  in  question,  if 
mistaken  or  unauthorized,  was  yet  taken  in  a  reason- 
.  able,  good-faith  belief  that  it  was  proper.   If  the 


court  so  finds  it  shall  not  apply  the  exclusionary  rule 
to  the  evidence. 

The  reasonable  good  faith  rule  announced  by  the  Fifth 
Circuit  is  the  same  rule  urged  by  the  Attorney  General's  Task 
Force  on  Violent  Crime.   If  implemented,  we  believe  that  this 
restatement  of  the  exclusionary  rule  would  go  a  long  way  towards 
insuring  that  the  rule  would  be  applied  only  in  those  situations 
in  which  police  misconduct  logically  can  be  deterred.   Law 
enforcement  officers  will  no  longer  be  penalized  for  their 
reasonable,  good  faith  efforts  to  execute  the  law.   On  the  other 
hand,  courts  would  continue  to  exclude  evidence  obtained  as  a 
result  of  searches  or  seizures  which  were  performed  in  an 
unreasonable  manner  or  in  bad  faith,  such  as  by  deliberately 
misrepresenting  the  facts  used  to  obtain  a  warrant.   Thus,  the 
penalty  of  exclusion  will  only  be  imposed  when  officers  engage  in 
the  type  of  conduct  the  exclusionary  rule  was  designed  to  deter 
—  clear,  unreasonable  violations  of  our  very  important  Fourth 
Amendment  rights. 

It  should  be  noted  that  the  reasonable,  good  faith  rule 
requires  more  than  an  assessment  of  an  officer's  subjective  state 
of  mind  and  will  not,  as  is  sometimes  argued,  place  a  premium  on 
police  ignorance.   In  fact,  the  rule  requires  a  showing  that  the 
officer's  good  faith  belief  is  grounded  in  an  objective  reason- 
ableness.  As  the  Williams  court  explained,  the  officer's  belief 
in  the  lawfulness  of  his  action  must  be  "based  upon  articulable 
premises  sufficient  to  cause  a  reasonable  and  reasonably  trained 
officer  to  believe  he  was  acting  lawfully."   Accordingly,  an 
arrest  or  search  that  clearly  violated  the  Fourth  Amendment  under 
prior  court  decisions  would  not  be  excepted  from  the  rule  simply 
because  a  police  officer  was  unaware  of  the  pertinent  case  law. 
Thus,  there  would  remain  a  strong  incentive  for  law  enforcement 
officers  to  keep  abreast  of  the  latest  developments  in  the  law. 
Constitutionality  of  the  Proposed  Modification 

In  conclusion,  I  would  like  to  emphasize  that  the  Department 
of  Justice  is  satisfied  that  our  proposal  is  fully  constitutional. 
It  is  very  similar  to  that  already  adopted  in  the  Vlilliams  case, 
an  extensive  decision  based  on  a  thorough  analysis  of  relevant 


Supreme  Court  cases.   Moreover,  the  dissent  of  the  chief  Justice 
in  Bivens  v.  Six  Unknown  Named  Agents  of  the  Federal  Bureau  of 
Narcotics,  403  U.S.  388,  422-42i»  (1971)  invited  Congressional 
•OtlOB  in  this  area.   Since  our  proposal  Is  grouhded  primarily  on 

the  osces  decided  over  the  past  ten  years  in  which  the  Supreme 
Court  has  emphasized  the  deterrence  of  unlawful  conduct  as  the 
sole  or  primary  purpose  of  the  rule,  the  Department  has  concluded 
that  such  a  modification  would  be  held  to  be  constitutionally 
permissible.   In  addition,  as  mentioned  above,  our  proposal  Is 
:'  fully  consistent  with  the  principle  of  judicial  integrity  as  well 
■^A  ma   Mlth  that  of  deterrence. 

Title  IV  of  our  bill  is  designed  to  enhance  the  use  of 
forfeiture,  and  la  particular  the  sanction  of  criminal  forfeit- 
ure, as  a  law  enforcement  tool  in  combatting  two  of  the  most 
serious  crime  problems  facing  the  country:   racketeering  and  drug 

Tl)ere  are  presently  two  types  of  forfeiture  statutes  in 
federal  law.   The  first  provides  for  civil  forfeiture,  a  civil  in 
rem  action,  brought  directly  against  property  which  is  unlawful 
or  contraband,  or  which  has  been  used  for  an  unlawful  purpose. 
The  majority  of  drug-related  property.  Including  drug  profits, 
now  must  be  forfeited  civilly  under  21  U.S.C.  881.   While  this 
civil  forfeiture  statute  has  been  an  extremely  useful  tool  in  the 
effort  to  combat  drug  trafficking,  a  significant  drawback  is  the 
requirement  that  a  separate  civil  suit  be  filed  in  each  district 
in  which  forfeitable  property  is  located.   Also,  the  overcrowding 
of  civil  dockets  may  require  a  substantial  delay  before  these 
civil  forfeiture  cases  may  be  heard.   Where  the  property  to  be 
forfeited  is  the  property  of  a  person  charged  with  a  drug 
violation,  and  that  violation  constitutes  the  basis  for  forfeit- 
ure, a  more  efficient  way  of  achieving  forfeiture  would  be  to 
employ  the  second  type  of  forCeiture  statute,  a  criminal  forfeit- 
ure statute,  which  permits  the  consolidation  of  forfeiture  issues 
with  the  trial  of  the  criminal  offense. 


Criminal  forfeiture  is  relatively  new  to  federal  law, 
although  it  has  its  origins  in  ancient  English  common  law.   It  is 
an  iji  personam  proceeding  against  a  defendant  in  a  criminal  case, 
and  is  Imposed  as  a  sanction  against  the  defendant  upon  his 
conviction.   Criminal  forfeiture  is  now  available  under  only  two 
statutes:   the  Racketeer  Influenced  and  Corrupt  Organization  or 
"RICO"  statuteV  and  the  Continuing  Criminal  Enterprise  or  "CCE" 
statute, 2/  a  specialized  drug  offense  which  punishes  those  who 
conduct  drug  trafficking  organizations. 

In  the  last  decade,  there  has  been  an  increasing  awareness 
of  the  extremely  lucrative  nature  of  drug  trafficking  and  of  the 
illicit  economy  which  it  generates  and  through  which  it  is 
sustained,  and  thus,  of  the  importance  of  effective  tools  for 
attacking  the  economic  aspects  of  such  crime.   A  similar 
awareness  with  respect  to  racketeering  led  to  the  enactment  of 
the  RICO  and  CCE  statutes  more  than  ten  years  ago. 

Both  civil  and  criminal  forfeiture  hold  significant  promise 
as  important  law  enforcement  tools  in  separating  racketeers  and 
drug  traffickers  from  their  ill-gotten  profits  and  the  economic 
power  bases  through  which  they  operate.   However,  because  of 
limitations  of  and  ambiguities  in  present  forfeiture  statutes, 
the  law  enforcement  potential  of  forfeiture  in  these  areas  has 
not  been  fully  realized.   Title  IV  is  designed  to  address  these 
problems,  and  is  based  with  minor  modifications  on  the  forfeiture 
provisions  of  title  VI  of  the  Senate-passed  comprehensive  drug 
enforcement  and  violent  crime  bill  of  the  last  Congress, 
S.  2572.3/   Substantially  similar  forfeiture  legislation,  S.  9'*8, 
is  now  also  before  the  Judiciary  Committee. 

The  forfeiture  provisions  of  our  bill  are  divided  into  four 
parts.   The  first,  Part  A,  amends  the  criminal  forfeiture 
provisions  of  the  RICO  statute.   One  of  the  most  important  of  the 
RICO  amendments  would  make  the  proceeds  of  racketeering  activity 
1/  18  U.S.C.  I960  et  seq. 
2/  21  U.S.C.  848. 

2/  This  title  of  S.  2572  was,  with  certain  amendments,  based  on 

S.  2320,  the  forfeiture  bill  prepared  by  the  Administration  which 
was  approved  by  the  Senate  Judiciary  Committee.   S.  Rept.  No. 
97-520,  97th  Cong.,  1st  Sess.  (1982). 


specifically  subject  to  an  order  of  criminal  forfeiture.   While 
it  has  been  our  position  .that  the  scope  of  the  current  criminal 
forfeiture  language  of  the  RICO  statute  encompasses  this  type  of 
property,  certain  appellate  courts  have  not  agreed,  and  this 
issue  is  currently  pending  review  by  the  Supreme  Court. H./  In  our 
view,  the  utility  of  criminal  forfeiture  as  a  means  of  combatting 
racketeering  would  be  seriously  limited  if  we  were  unable  to 
reach  racketeering  profits,  and  this  amendment  is  therefore 
essential  to  the  RICO  forfeiture  scheme. 

Clarifying  the  scope  of  property  subject  to  forfeiture  goes 
only  part  of  the  way  towards  making  the  RICO  forfeiture  statute 
more  effective.   We  must  also  address  the  serious  problem  of 
defendants  defeating  criminal  forfeiture  actions  by  removing, 
concealing,  or  transferring  forfeitable  assets  prior  to  convic- 
tion.  To  counteract  this  problem,  our  RICO  forfeiture  amendments 
strengthen  the  government's  ability  to  obtain  restraining  or 
protective  orders  to  preserve  forfeitable  assets  until  trial  and 
would  permit,  under  limited  circumstances,  the  issuance  of  such 
orders  prior  to  indictment  —  an  authority  lacking  under  current 
law.   They  also  provide  clear  authority  to  void  transfers  a 
defendant  has  undertaken  in  an  attempt  to  defeat  the  govern- 
ment's opportunity  for  forfeiture.   Finally,  where  a  defendant 
has  succeeded  in  removing  his  forfeitable  assets  from  the  reach 
of  the  government,  our  bill  would  permit  the  court  to  order  him 
to  forfeit  substitute  assets  of  equal  value.   We  believe  these 
amendments  are  essential  to  an  effective  criminal  forfeiture 
statute.   In  criminal  forfeiture,  custody  of  forfeitable  assets 
remains  with  the  defendant  until  conviction.   Therefore,  we  must 
have  strong  authority  to  prevent  improper  pre-conviction 
transfers  and  to  negate  the  benefits  of  such  transfers  when  they 

Part  B  of  Title  IV  of  the  Administration's  bill  makes 
several  amendments  to  the  Comprehensive  Drug  Abuse  Prevention  and 

i*/  Russello  V.  United  States  (No.  82-J*72,  cert,  granted 
Jan.  10,  \962T'. 


Control  Act  of  1970.5/   The  most  significant  of  these  aM«ndB«nta 
is  the  creation  of  a  new  criminal  forfeiture  statute  that  would 
be  applicable  in  all  major  drug  prosecutions.   Presently,  the 
sole  drug  offense  to  which  criminal  forfeiture  applies  is  the 
specialized  Continuing  Criminal  Enterprise  statute. £/   The  scope 
of  property  subject  to  criminal  forfeiture  under  this  new 
provision  would  be  essentially  the  same  as  that  now  subject  to 
civil  forfeiture  under  the  drug  laws,  namely,  the  proceeds  of 
drug  offenses  and  property  used  in  the  commission  of  these 
crimes.   While  there  will  continue  to  be  cases  where  the  use  of 
civil  forfeiture  will  be  either  necessary  or  preferable,  the 
option  of  proceeding  with  a  criminal  forfeiture  action  should 
allow  greater  efficiency  in  our  drug  forfeiture  efforts  by 
reducing  the  need  to  pursue  parallel  civil  forfeiture  actions  and 
criminal  prosecutions.   The  new  criminal  forfeiture  statute  for 
drug-related  assets  tracks  the  RICO  criminal  forfeiture  provi- 
sions as  amended  in  Part  A  of  this  Title.   Thus,  this  new  statute 
incorporates  impor;tant  safeguards  to  protect  against  the  greatest 
flaw  of  current  criminal  forfeiture  statutes,  the  opportunities 
they  present  for  defendants  to  utterly  avoid  the  forfeiture 
sanction  by  removing,  concealing,  or  transferring  their  assets 
before  conviction  can  be  obtained. 

Another  important  aspect  of  Part  B  of  our  forfeiture 
proposal  is  an  amendment  of  the  current  civil  forfeiture  provi- 
sions of  the  drug  laws  to  permit  the  forfeiture  of  real  property 
used  in  the  commission  of  drug  felonies.   This  new  authority 
would  permit  the  forfeiture  of  buildings  used  as  "stash"  houses 
and  illicit  drug  laboratories,  and  would  also  permit  the  forfeit- 
ure of  land  used  to  cultivate  drugs,  a  problem,  particularly  with 
respect  to  the  domestic  cultivation  of  marihuana,  that  is  of 
growing  concern  to  federal  drug  enforcement  authorities.   The. 
civil  forfeiture  provisions  of  our  drug  laws  are  also  amended  in 
Part  B  to  include  a  provision  for  the  stay  of  civil  forfeiture 
proceedings  pending  the  disposition  of  a  related  criminal  case. 
Without  such  stays,  the  civil  forfeiture  proceeding  can  be 
5/  21  U.S.C.  601  et  seq. 

^/  21  U.S.C.  848. 


manipulated  to  obtain  premature,  and  otherwise  impermissibly 
broad,  discovery  of  matters  that  will  arise  in  the  government's 
prosecution  of  an  associated  criminal  offense. 

Through  the  amendments  set  out  in  Part  B  of  our  forfeiture 
proposal,  we  should  be  able  to  improve  significantly  our  efforts 
to  attack  the  crucial  economic  aspects  of  the  lucrative  illicit 
drug  trade.   Increased  efforts  in  this  area  have  obvious  bene- 
fits.  However,  we  also  must  recognize  that  pursuing  forfeiture 
can  prove  to  be  an  expensive  proposition  for  the  United  States. 
Indeed,  in  certain  cases,  the  expenses  associated  with  forfeiture 
can  exceed  the  amount  that  we  ultimately  realize  upon  the  sale  of 
forfeited  assets.   In  our  view,  it  would  be  particularly  appro- 
priate to  make  the  net  profits  from  drug  forfeitures  available  to 
defray  the  costs  incurred  by  the  government  in  obtaining  forfeit- 
ures. Therefore,  Part  C  of  this  title  establishes  a  trial 
four-year  program  under  which  amounts  realized  by  the  United 
Stated  from  the  forfeiture  of  drug  profits  and  other  drug-related 
assets  would  be  placed  in  a  special  fund  from  which  the  Congress 
could  appropriate  moneys  specifically  for  the  purpose  of  paying 
expenses  that  arise  in  civil  and  criminal  forfeiture  actions 
under  the  drug  laws.   Among  the  purposes  for  which  these  funds 
could  ,be  used  is  the  payment  of  rewards  for  information  or 
assistance  leading  to  a  forfeiture.   The  availability  of  sub- 
stantial rewards  is  essential  if  we  are  to  obtain  significant 
forfeiture  in  the  secretive  and  violent  setting  of  drug  traf- 

The  final  group  of  forfeiture  amendments,  which  make  up  Part 
D  of  Title  IV,  are  amendments  to  the  Tariff  Act  of  1930.   These 
provisions  govern  the  seizure  and  forfeiture  of  property  under 
the  customs  laws,  and  are  also  applicable  to  seizures  and 
forfeitures  of  drug-related  property  under  21  U.S.C.  881.   The 
most  important  of  these  amendments  would  expand  the  use  of 
efficient  administrative  forfeiture  proceedings  in  cases  in  which 
no  party  comes  forward  to  contest  a  civil  forfeiture  action. 
Under  current  law,  administrative  forfeiture  is  available  only  in 
those  uncontested  esses  which  involve  property  valued  at  $10,000 


or  less;  all  other  cases  must  be  the  subject  of  judicial  proceed- 
ings.  Because  of  this  current  low  valuation  ceiling  on  adminis- 
trative forfeitures,  judicial  proceedings  are  required  in  a 
significant  number  of  forfeiture  cases,  even  though  there  is  no 
party  in  opposition  to  the  forfeiture.   In  these  cases,  the 
overcrowding  of  court  dockets  often  means  a  delay  of  more  than 
one  year  before  the  case  may  be  heard,  and  during  this  period  of 
delay  the  property  is  subject  to  deterioration  and  the  costs  to 
the  government  in  maintaining  and  safeguarding  the  property 
escalate.   To  address  these  problems,  the  Tariff  Act  is  amended 
in  our  bill  to  permit  the  use  of  more  efficient  administrative 
forfeiture  proceedings  in  uncontested  cases  involving  any 
conveyances  used  to  transport  illicit  drugs  and  any  other 
property  of  a  value  of  up  to  $100,000. 

Also  included  in  these  Tariff  Act  amendments  are  two  changes 
in  current  law  that  will  enhance  cooperation  between  federal  law 
enforcement  agencies  and  their  State  and  local  counterparts. 
First,  new  authority  is  created  whereby  property  forfeited  by  the 
United  States  may  be  directly  transferred  to  State  or  local 
agencies  which  have  assisted  in  developing  the  case  that  led  to 
the  forfeiture.   Second,  the  authority  for  discontinuance  of 
federal  forfeitures  in  favor  of  State  or  local  forfeiture 
proceedings  is  clarified. 

Finally,  the  Tariff  Act  amendments  provide  for  a  trial 
funding  mechanism  for  meeting  the  expenses  of  customs  forfeitures 
which  parallels  that  established  for  drug-related  forfeitures 
under  Part  C  of  this  Title.   In  essence,  this  provision  places 
the  moneys  realized  from  forfeitures  under  the  customs  laws  in  a 
special  fund  from  which  appropriations  may  be  made  to  cover  the 
costs  associated  with  the  seizure,  forfeiture,  and  ultimate 
disposition  of  assets.  • 

For  the  purposes  of  our  testimony  today,  we  have  only 
touched  on  the  more  important  of  the  forfeiture  amendments  of 
Title  IV  of  the  Administration's  bill.   However,  in  this  title  of 
the  bill,  we  have  attempted  to  achieve  a  comprehensive  improve- 
ment of  our  forfeiture  laws.   Thus,  our  proposal  not  only 

25-694  O  -  84  -  11 


corrects  the  most  disturbing  limitations  of  current  law,  but 
also  addresses  numerous  ambiguities  and  provides  needed  guidance 
in  procedural  matters,  guidance  which  is  particularly  lacking  in 
current  criminal  forfeiture  statutes.  Forfeiture  can  be  a  vital 
element  in  our  efforts  to  combat  racketeering  and  drug  traffick- 
ing. But  to  achieve  this  goal,  our  forfeiture  laws  must  be 
strengthened  as  provided  in  Title  IV  of  our  bill. 

TITLE  V  -  The  Insanity  Defense 

Title  V  of  the  bill  deals  with  the  insanity  defense  and  with 
related  procedural  matters  that  apply  in  the  federal  criminal 
justice  system.   The  subject  is  an  important  one.   Although  the 
insanity  defense  is  raised  in  comparatively  few  federal  oases  and 
is  successful  in  even  fewer,  the  defense  raises  fundamental 
Issues  of  criminal  responsibility  which  the  Congress  should 
address.   Moreover,  the  insanity  defense  is  often  asserted  in 
cases  of  considerable  notoriety  which  influence,  far  beyond  their 
numbers,  the  public's  perception  of  the  fairness  and  efficiency 
of  the  criminal  justice  process. 

It  requires  little  reflection  to  understand  why  the  public 
is  so  concerned  about  the  defense.   When  it  is  raised  following  a 
crime  involving  a  prominent  defendant  or  victim,  in  which  there 
is  absolutely  no  question  whether  the  defendant  committed  the 
acts  constituting  the  offense  —  indeed  we  may  well  have  been 
able  to  see  him  do  it  several  times  over  on  television  news 
reports  —  and  yet  the  highly  publicized  trial  that  follows 
focuses  not  on  those  acts  so  much  as  on  the  defendant's  mental 
and  emotional  history,  most  lawyers  and  laymen  alike  would  agree  • 
that  the  focus  of  the  judicial  process  has  become  grossly 

In  spite  of  these  problems  with  the  defense  and  its  impor- 
tance, it  is  ironic,  as  the  Attorney  General  pointed  out  last 
July  when  he  testified  before  the  Committee,  that  neither  the  - 


Congress  nor  the  Supreme  Court  has  yet  played  a  major  role  in  its 
development.  Its  evolution  in  England  and  in  this  country  over 
several  centuries  has  been  haphazard  and  confusing.   As  the 
Conimittee  knows  from  its  work  over  the  past  decade  or  more  on  the 
criminal  code  revision  bills,  Congress  has  never  enacted  legis- 
lation defining  the  insanity  defense.   Likewise,  the  Supreme 
Court  has  generally  left  development  of  the  defense  to  the 
various  federal  courts  of  appeals.   As  a  result,  the  federal 
circuits  do  not  even  at  present  apply  a  wholly  uniform  standard. 
^    In  recent  years,  however,  all  of  the  federal  circuits  have 
adopted,  with  some  variations,  the  formulation  proposed  by  the 
American  Law  Institute's  Model  Penal  Code  which  provides  that  a 
"person  is  not  responsible  for  criminal  conduct  if  at  the  time  of 
such  conduct  as  a  result  of  mental  disease  or  defect  he  lacks 
substantial  capacity  to  appreciate  the  [criminality]  [wrongful- 
ness] of  his  conduct  or  to  conform  to  the  requirements  of  the 

As  a  result,  in  a  trial  involving  the  insanity  defense,  the 
defendant's  commission  of  the  acts  in  question  is  commonly 
conceded  or  at  least  not  seriously  contested.   Instead  the  trial 
centers  around  t^e  issue  of  insanity  and  the  key  participants  are 
highly  paid  psychiatrists  who  offer  conflicting  opinions  on  the 
defendant's  sanity.   Unfortunately  for  the  Jury  and  for  society, 
the  terms  used  in  any  statement  of  the  defense  —  for  example  the 
term  "paranoid  schizophrenia"  --  are  often  not  defined  and  the 
experts  themselves  disagree  on  their  meaning.   In  addition,  the 
experts  often  do  not  agree  on  the  extent  to  which  behavior 
patterns  or  mental  disorders  that  have  been  labeled  "schizo- 
phrenia," "inadequate  personality,"  and  "abnormal  personality" 
actually  cause  or  impel  a  person  to  act  in  a  certain  way.   For 
example,  a  December,  1982,  statement  by  the  American  Psychiatric 
Association  on  the  insanity  defense  noted  that  "[t]he  line 
between  an  irresistible  impulse,  and  an  impulse  not  resisted  is 
probably  no  sharper  than  that  between  twilight  and  dusk." 

Since  the  experts  themselves  are  in  disagreement  about  both 
the  meaning  of  the  terms  used  to  define  the  defendant's  mental 
state  and  the  effect  of  a  particular  state  on  the  defendant's 


•Otions  —  but  still  freely  allowed  to  state  their  opinion  to  the 
Jury  on  the  ultimate  question  of  the  defendant's  sanity  —  it  is 
amall  wonder  that  trials  involving  an  insanity  defense  are 
arduous,  expensive,  and  worst  of  all,  thoroughly  confusing  to  the 
Jury.   Indeed  the  disagreement  of  the  experts  is  so  basic  that  it 
-■akes  rational  deliberation  by  the  Jury  virtually  impossible. 
Thus,  it  is  not  surprising  that  the  Jury's  decision  can  be 
strongly  influenced  by  the  procedural  question  of  which  side  must 
carry  the  burden  of  proof  on  the  question  of  insanity.   In  this 
regard,  we  can  vividly  recall  that  several  of  the  Jurors  in  the 
Hinckley  case  publicly  stated,  afterwards  that  they  were  strongly 
influenced  by  the  fact  that  the  government  had  the  burden  of 

Thus,  Title  V  has  been  drafted  to  reflect  three  changes  in 
the  insanity  defense  in  the  federal  system  that  would  restrain  it 
within  fair  and  reasonable  boundaries  and  make  .it  more  comprehen- 
sible to  the  Jury.   First,  the  defense  would  be  limited  to  those 
cases  in  which  the  defendant,  as  a  result  of  mental  disease  or 
defect,  was  unable  to  appreciate  the  nature  and  quality  or 
wrongfulness  of  his  acts,  and  it  is  made  explicit  that  mental 
disease  or  defect  does  not  otherwise  constitute  a  defense. 
Second,  opinion  evidence  on  the  question  whether  the  defendant 
had  the  mental  state  or  condition  to  constitute  either  an  element 
of  the  crime  or  a  defense  is  prohibited;  and  third,  the  defendant 
would  be  required  to  carry  the  burden  of  proof  of  his  insanity  by 
clear  and  convincing  evidence. 

Limiting  the  defense  to  those  cases  in  which  a  mental  disease 
or  defect  renders  the  defendant  unable  to  appreciate  the  nature 
and  quality  or  wrongfulness  of  his  acts  would  abolish  the 
volitional  portion  of  the  two-pronged  ALI-Model  Penal  Code  test 
for  insanity  quoted  earlier.   We  have  concluded  that  elimination 
of  the  volitional  portion  of  the  test  is  appropriate  since  mental 
health  professionals  themselves  have  come  to  recognize  that  it  is 
very  difficult  if  not  impossible  to  determine  whether  a  particu- 
lar individual  lacked  the  ability  to  conform  his  conduct  to  the 


requirements  of  the  law  becfause  he  was  suffering  from  a  mental 
disease  or  defect.   There  is,  in  short,  a  much  stronger  agreement 
among  psychiatrists  about  their  ability  to  ascertain  whether  as  a 
result  of  mental  illness  a  defendant  had  an  understanding  of  his 
acts  than  about  whether  he  had  the  capacity  to  heed • the  law's 
strictures . 

Opinion  evidence  on  the  ultimate  question  of  whether  the 
defendant  haa  the  mental  state  or  condition  to  constitute  an 
element  of  the  offense  or  a  defense  would  be  proscribed  in  our 
proposal  by  an  amendment  to  Rule  704  of  the  Federal  Rules  of 
Evidence.   We  believe  that  such  a  provision  is  critical  in 
overcoming  the  abuses  of  the  insanity  defense  as  it  is  presently 
employed  in  the  federal  system.   In  many  insanity  defense  trials, 
prosecution  and  defense  psychiatrists  agree  on  the  nature  and 
extent  of  the  defendant's  mental  disorder.   What  they  disagree 
about  is  the  probable  relationship  between  his  disorder  and  his 
ability  to  control  his  conduct  or  even  to  appreciate  its  wrong- 
fulness.  In  our  view,  expert  opinion  testimony  on  whether  the 
defendant  could  appreciate  the  nature  and  quality  or  wrongfulness 
of  his  acts  and  on  his  motive,  intent,  or  other  mental  state 
should  be  disallowed.   As  recognized  by  many  psychiatrists 
themselves,  there  is  no  basis  for  believing  that  psychiatry  is 
competent  to  determine  such  matters  as  they  existed  on  a  previous 
occasion  as  opposed  to  simply  describing  the  person's  mental 
disorder  or  defect.   We  believe  that  the  question  of  the  connec- 
tion between  any  mental  disease  or  defect  and  the  defendant's 
inability  to  understand  his  acts  is  the  type  of  fact  question 
that  ought  to  be  left  to  the  trier  of  fact  unhindered  by  "expert" 
opinion  in  an  area  where  no  consensus  of  such  opinion  exists. 

Our  proposal  also  shifts  to  the  defendant  the  burden  of 
proving  his  insanity  by  clear  and  convincing  evidence.   Such  a 
shift  does  not  present  a  constitutional  issue.   The  present  rule 
followed  in  the  federal  courts  which  places  the  burden  of  proving 
sanity  on  the  prosecution  stems  from  the  Nineteenth  Century  case 
of  Davis  V.  United  States,  160  U.S.  ijeg.   The  rule  has  been  held 
to  establish  "no  constitutional  doctrine,  but  only  the  rule  to  be 


followed  in  federal  courts."  Leland  v.  Oregon.  S'^S  U.S.  790,  797 
(1952).  Leland,  which  sustained  the  constitutionality  of  an 
Oregon  statute  shifting  the  burden  of  persuasion  on  insanity  to 
the  defendant  beyond  a  reasonable  doubt,  was  reaffirmed  by  the 
Supreme  Court  in  Patterson  v.  New  York,  ^32  U.S.  197  (1977),  a- 
case  dealing  with  the  constitutionality  generally  of  the  concept 
of  affirmative  defenses  in  which  the  burden  of  persuasion  is 
placed  on  the  defendant.   Although  Patterson  did  not  deal  with 
the  insanity  defense,  it  not*d  specifically  that  under  Leland 
"once  the  facts  constituting  a  crime  are  established  beyond  a 
reasonable  doubt,  based  on  all  the  evidence,  including  evidence 
of  the  defendant's  mental  state,  the  State  may  refuse  to  sustain 
the  affirmative  defense  of  insanity  unless  demonstrated  by  the 
defendant  by  a  preponderance  of  the  evidence."   Patterson,  p. 
206.   As  recently  stated  by  the  Sixth  Circuit:   "Patterson  makes 
it  clear  that  so  long  as  a  jury  is  instructed  that  the  state  has 
the  burden  of  proving  every  element  of  the  crime  beyond  a 
reasonable  doubt,  there  is  no  due  process  violation.   The  state 
may  properly  place  the  burden  of  proving  affirmative  defenses 

such  as  ...  insanity  upon  the  defendant."   Krzeminski  v.  Perini, 
61U  F.2d  121,  123  (6th  Cir.  I98O).   A  little  over  half  of  the 
states  now  place  the  burden  of  persuasion  on  the  defendant. 

Our  proposal  would  require  the  defendant  to  prove  his 
insanity  by  clear  and  convincing  evidence,  a  higher  standard  of 
proof  than  a  mere  preponderance  of  the  evidence.   In  our  view,  it 
is  important  to  assure  that  only  those  defendants  who  clearly 
satisfy  the  elements  of  an  insanity  defense  are  exonerated  from 
what  otherwise  would  be  culpable  criminal  behavior.   It  is 
therefore  appropriate  to  require  the  defendant  to  demonstrate  his 
insanity  by  something  more  than  a  bare  preponderance  of  the 

Moreover,  what  our  proposal  does  not  do  is  worthy  of  special 
emphasis.   While  Title  V  would  shift  the  burden  of  proof  on  the 
insanity  defense  to  the  defendant,  it  does  not  relieve  the 
government  of  the  burden  of  proving  each  and  every  element  of  th' 
offense,  including  any  statutorily  prescribed  mental  element  sue 
as  willfulness  or  malice,  beyond  a  reasonable  doubt. 


In  sum,  we  believe  that  our  proposal  for  a  legislative 
limitation  of  the  insanity  defense  is  reasonable,  workable,  and 
fair.   It  continues  the  privilege  of  the  defendant  to  raise  the 
defense  of  insanity,  while  restoring  the  right  of  society, 
through  the  Jury,  to  evaluate  all  the  evidence  and  determine 
whether  any  mental  disease  or  defect  that  the  defendant  is  able 
to  show  was  the  cause  of  the  crime.   In  short,  the  jury  will 
determine  whether  the  defendant  committed  the  crime  because  he 
could  not  understand  what  he  was  doing  or  could  not  appreciate 
the  wrongfulness  of  his  conduct  due  to  a  mental  disease  or 
defect,  or  whether  he  had  such  an  understanding  or  appreciation 
but  decided  to  do  it  anyway. 

Beyond  the  reforms  of  the  insanity  defense  itself  which  we 
have  just  described,  Title  V  contains  a  number  of  provisions  for 
the  commitment  to  a  mental  hospital  for  treatment  of  persons  at 
various  stages  in  the  criminal  justice  process  who  are  so 
disturbed  as  to  present  a  danger  to  the  community.   These 
provisions  are  familar  to  the  Committee  since  they  are  virtually 
identical  to  those  contained  in  recent  criminal  code  revision 
bills  such  as  S.  1630  in  the  last  Congress  and  generally  arouse 
little  or  no  controversy.   Of  paramount  importance  is  the 
establishment  for  the  first  time  of  a  civil  commitment  procedure 
for  defendants  who,  for  one  reason  or  another,  are  charged  with  a 
crime  but  not  convicted.  At  present,  outside  the  District  of 
Columbia,  there  is  no  federal  statute  authorizing  or  compelling 
the  conunitment  of  an  acquitted  but  presently  dangerous  and  insane 
individual.   When  faced  with  such  a  situation,  federal  prosecu- 
tors today  can  do  no  more  than  call  the  matter  to  the  attention 
of  State  or  local  authorities  and  urge  them  to  institute  commit- 
ment proceedings.  Of  course  there  is  no  requirement  that  this 
will  occur,  and  the  lack  of  such  a  commitment  procedure  in  the 
federal  system  creates  the  very  real  potential  that  the  public 
will  not  be  adequately  protected  from  a  dangerously  insane 


62  - 

defendant  who  is  acquitted  at  trial.   In  short,  federal  prosecu- 
tors must  at  present  hope  that  the  state  officials  will  come  to 
their  rescue  and  take  up  what  began  as  a  federal  responsibility. 

Accordingly,  we  strongly  urge  the  Committee  to  include  all 
of  these  comprehensive  procedural  reforms  as  an  integral  part  of 
the  reform  of  the  insanity  defense. 

TITLE  VI  —  Reform  of  Federal  Intervention  in 
State  Proceedings 

Title  VI  of  the  bill  responds  to  the  serious  problem  of 
habeas  corpus  abuse.   The  overly  broad  availability  of  collateral 
proceedings  in  the  federal  courts  has  been  a  growing  source  of 
concern  in  recent  years  to  legal  writers,  state  judges  and 
attorneys  general,  and  federal  judges.   Indeed,  a  majority  of  the 
Justices  of  the  Supreme  Court  have  strongly  criticized  the 
current  operation  of  federal  habeas  corpus  and  have  called  for 
basic  limitations  on  its  scope  and  availability.  \_/       The 
generally  recognized  shortcomings  of  the  current  system  include 
the  affront  to  the  state  courts  involved  in  unnecessary 
re-adjudication  of  their  decisions  by  the  lower  federal  courts; 
the  impossibility  of  ever  conclusively  ending  the  litigation  of  a 
criminal  case  on  account  of  the  open-ended  availeJjility  of 
federal  habeas  corpus;  the  waste  of  federal  and  state  resources 
involved  in  litigating  the  frivolous  and  redundant  petitions  of 
state  and  federal  prisoners;  and  the  virtual  nullification  of 

1/   See  Rose  v.  Lundy,  455  U.S.  509,  546-47  (1982)  (Stevens,  J., 
dissenting) ;  Schneckloth  v.  Bustamonte,  412  U.S.  218,  250 
(1973)   (concurring  opinion  ol     Powell,  J.,  joined  by 
Burger,  C.J.,  and  Rehnquist,  J.);  Burger,  1981  Year-End 
Report  on  the  Judiciary  21;  O'Connor,  Trends  in  the 
Relationship  Between  the  Federal  and  State  Courts  from  the 
Perspective  of  a  State  Court  Judge"  22  William  &  Mary  L. 
Rev.  801,  814-15  (1981) ;  Justice  Lewis  Powell,  Address 
Before  the  A.B.A.  Division  of  Judicial  Administration, 
Aug.  9,  1982.   See  also  Schnecltloth  v.  Bustamonte,  412  U.S. 
218,  249  (1973)  (Blac)tmun,  J.,  concurring);  Engle  v.  Isaac, 
456  U.S.  107,  126-28  (1982). 


state  capital  punishment  laws  that  has  resulted  from  delayed  and 
repetitive  habeas  corpus  applications  in  capital  cases. 

Title  VI  incorporates  a  variety  of  reforms  responding 
to  these  abuses.   The  proposals  in  the  Title  originated  as 
S.  2216  of  the  97th  Congress,  which  was  the  subject  of  hearings 
before  the  Senate  Judiciary  Committee  in  April  of  1982.   The 
proposals  were  later  re-introduced  in  the  97th  Congress  by 
Senator  Thurmond  as  S.  2838  with  certain  clarifying  amendments 
resulting  from  the  hearings.   The  proposals  of  Title  VI  of  this 
bill  are  the  same  as  those  of  S.  2838.   The  intended 
interpretation  and  justification  of  the  proposed  reforms  have 
been  fully  set  out  in  prior  statements  of  the  Administration  and 
the  bills'  sponsors,  y      In  brief,  the  major  reforms  of  Title  VI 
are  as  follows: 

First,  Title  VI  would  establish  a  time  limit  on  habeas 
corpus  applications.   The  need  for  such  a  reform  was  cogently 
expressed  in  a  recent  statement  of  Justice  Powell: 

Another  cause  of  overload  of  the  federal  system  is  28 
U.S.C.   §2254,   conferring  federal  habeas  corpus 
jurisdiction   to   review   state   court   criminal 
convictions.   There  is  no  statute  of  limitations,  and 
no  finality  of  federal  review  of  state  convictions. 
Thus,  repetitive  recourse  is  commonplace.   I  know  of  no 
other  system  of  justice  structured  in  a  way  that 
assures  no  end  to  the  litigation  of  a  criminal 
conviction.   Our  practice  in  this  respect  is  viewed 
with  disbelief  by  lawyers  and  judges  in  other 
countries.   Nor  does  the  Constitution  require  this  sort 
of  redundancy,  "ij 

Title  VI  would  correct  this  situation  by  enacting  a 

one-year  time  limit  on  habeas  corpus  applications,  normally 

y        See  128  Cong.  Rec.  S11851-59  (daily  ed.  Sept.  21,  1982) 
(statement  of  Senator  Thurmond  concerning  S.  2838);  129 
Cong.   Rec.   S3147-48   (daily  ed.   March   16,   1983) 
(section-by-section  analysis  of  Title  VI  of  S.829);  The 
Habeas  Corpus  Reform  Act  of  1982:   Hearing  on  S.2216  Before 
the  Senate  Committee  on  the  Judiciary,  97th  Cong.,  2d  Sess. 
16-107  (1982)   (Administration  statements  and  testimony 
concerning  S.2216).   See  also  William  French  Smith, 
"Proposals  for  Habeas  Corpus  Reform,"  in  P.  McGuigan  & 
R.  Rader,  eds..  Criminal  Justice  Reform:   A  Blueprint  (Free 
Congress  Research  and  Education  Foundation  1983)  . 

y        Justice  Lewis  Powell,  Address  Before  the  A.B.A.  Division  of 
Judicial  Administration,  Aug.  9,  1982. 


running  from  exhaustion  of  state  remedies.   The  proposed 
limitation  rule  may  be  compared  to  various  other  limits  presently 
imposed  on  the  review  or  re-opening  of  criminal  judgments  in  the 
federal  courts,  such  as  the  normal  90  day  limit  on  state 
prisoners'  applications  for  direct  review  in  the  Supreme  Court. 
It  would  provide  ample  time  for  state  defendants  to  seek  federal 
. review  of  their  convictions  following  the  conclusion  of  state 
proceedings.   It  would,  however,  create  a  means  for  control  of 
the  current  abuses  of  repetitive  filing  and  the  filing  of 
petitions  years  or  even  decades  after  the  normal  termination  of  a 
criminal  case. 

A  second  reform  of  Title  VI  addresses  the  problem  of 
claims  that  were  not  properly  raised  in  state  proceedings.   It  is 
particularly  disruptive  of  orderly  procedures  in  criminal 
adjudication  if  a  prisoner  who  failed  to  take  advantage  of  a  fair 
opportunity  to  raise  a  claim  in  state  proceedings  is  later 
allowed  to  raise  it  in  a  habeas  corpus  proceeding,  with  the 
potential  for  unsettling  a  criminal  conviction  long  after  it 
should  be  regarded  as  final.   Title  VI  would  establish  a  general 
rule  barring  the  assertion  in  federal  habeas  corpus  proceedings 
of  a  claim  that  was  not  properly  raised  before  the  state  courts/ 
so  long  as  the  state  provided  an  opportunity  to  raise  the  claim 
that  satisfied  the  requirements  of  federal  law. 

The  main  practical  import  of  the  proposed  rule  is  for 
cases  in  which  attorney  error  or  misjudgment  is  advanced  as  the 
reason  why  a  claim  was  not  raised  in  the  state  courts,  resulting 
in  its  forfeiture  under  state  rules  of  procedure.   A  procedural 
default  of  this  sort  would  be  excused  in  a  subsequent  habeas 
corpus  proceeding  if  the  attorney's  actions  amounted  to 
constitutionally  ineffective  assistance  of  counsel,  since  in  such 
a  case  the  default  would  be  the  result  of  the  state's  failure,  in 
violation  of  the  Sixth  Amendment  to  the  Constitution,  to  afford 


the  defendant  effective  assistance  of  counsel.  £/   But  minor  or 
technical  errors  or  misjudgments  —  which  even  the  most  able 
attorney  will  sometimes  engage  in,  given  the  pressures  and 
complexity  of  criminal  adjudication  —  would  not  excuse  a 
procedural  default.   As  Justice  O'Connor  stated  for  the  Supreme 
Court  in  Engle  v.  Isaac: 

We  have  long  recognized  .  .  .  that  the  Constitution 
guarantees  criminal  defendants  only  a  fair  trial  and  a 
competent  attorney.   It  does  not  insure  that  defense 
counsel  will  recognize  and  raise  every  conceivable 
constitutional  claim.  5^/ 

The  approach  of  Title  VI  is  consistent  with  the 

clearest  interpretations  of  the  current  rules  by  the  federal 

courts  of  appeals.  §_/      The  establishment  of  this  interpretation 

on  a  uniform  basis  will  avoid  many  years  of  additional  litigation 

that  would  be  required  to  resolve  the  existing  uncertainties  in 

this  area  through  caselaw  development. 

A  third  major  reform  of  Title  VI  is  affording  finality 
to  full  and  fair  state  adjudications  of  a  petitioner's  claims. 
Justice  O'Connor  has  observed: 

If  our  nation's  bifurcated  judicial  system  is  to  be 
retained,  as  I  am  sure  it  will  be,  it  is  clear  that  we 
should  strive  to  make  both  the  federal  and  the  state 
systems  strong,  independent,  and  viable.   State  courts 
will  undoubtedly  continue  in  the  future  to  litigate 
federal  constitutional  questions.   State  judges  in 
assuming  office  take  an  oath  -to  support  the  federal  as 
well  as  the  state  constitution.   State  judges  do  in 
fact  rise  to  the  occasion  when  given  the  responsibility 
and  opportunity  to  do  so.   It  is  a  step  in  the  right 
direction  to  defer  to  the  state  courts  and  give  finality 
to  their  judgments  on  federal  constitutional  questions 
where  a  full  and  fair  adjudication  has  been  given  in 
the  state  court.  TJ 

4/        See  Cuyler  v.  Sullivan,  446  U.S.  335,  344  (1980)  ("The  right 
to  counsel  prevents  the  state  from  conducting  trials  at 
which  persons  who  face  incarceration  must  defend  themselvss 
without  adequate  legal  assistance."). 

5/    456  U.S.  107,  134  (1982). 

6/   See  Indivi(^lio  v.  United  States,  612  F.2d  624,  631  (2d  Cir. 
197971   "without  some  showing  that  counsel's  mistakes  were 
so  egregious  as  to  amount  to  a  Sixth  Amendment  violation,  a 
mere  allegation  of  error  by  counsel  is  insufficient  to 
establish  'cause'  to  excuse  a  procedural  default." 

2/  O'Connor,  Trends  in  the  Relationship  Between  the  Federal  and 
^tate  Courts  from  the  Perspective  of  a  State  Court  Judge,  TI 
William  and  Mary  Law  Review  801,  814-15  (1981). 


To  be  full  and  fair  in  the  intended  sense  the  state 
adjudication  must  satisfy  a  nuinber  of  specific  requirements  which 
are  fully  set  out  in  the  legislative  history  of  the  proposal.  8^/ 
The  state  court  determination  must  be  reasoneible,  and  must  be 
arrived  at  by  procedures  consistent  with  appliczible  federal  law. 
This  standard  would  preserve  federal  re-adjudication  in  cases 
presenting  demonstrated  deficiencies  in  the  state  process.   It 
%rould,  however,  avoid  the  excesses  of  the  current  standard  of 
review  under  which  an  independent  determination  of  all  claims  is 
required  even  where  there  is  nothing  to  suggest  that  their 
consideration  by  the  state  courts  was  in  any  way  the  deficient. 

The  proposed  standard  is  similar  to  that  applied  by  the 
Supreme  Court  in  habeas  corpus  proceedings  prior  to  the 
unexplained  substitution  of  the  current  rules  of  ■ mandatory 
re-adjudication  in  Brown  v.  Allen.  £/   It  may  also  be  compared  to 
standards  of  review  currently  employed  in  various  other  areas  of 
federal  law.   One  exeimple  is  the  "good  faith"  standard  applicable 
to  judicial  review  of  state  executive  action  in  S  1983  suits, 
under  which  the  disposition  similarly  depiends  on  the 
reasonableness  of  the  state  official's  views  concerning  the 
requirements  of  federal  law.   The  effect  of  the  new  standard  of 
review  proposed  in  Title  VI  should  be  a  relatively  quick  and  easy 
disposition  in  federal  hzibeas  corpus  proceedings  of  most  claims 
that  have  previously  been  determined  by  the  state  courts. 

8/   See  128  Cong.  Rec.  S11852,  S11855-57  (daily  ed.  Sept.  21, 
TM2)  ;  The  Habeas  Corpus  Reform  Act  of  1982:   Hearing  on 
S.  2216  Before  the  Senate  Committee  on  the  Judiciary,  97th 
Cong.,  2d  Sess.  16-17,  41-42,  89-101  (1982);  129  Cong.  Rec. 
S3147-48  (March  16,  1983). 

£/    344  U.S.  443  (1953).   See  Ex  Parte  Hawk,  321  U.S.  114,  118 
(1944):   "Where  the  state  courts  have  considered  and 
adjudicated  the  merits  of  ...  (a  petitioner's]  .  .  . 
contentions  ...  a  federal  court  will  not  ordinarily 
reexzimine  upon  writ  of  habeas  corpus  the  questions  thus 
adjudicated  ....   But  where  resort  to  state  court 
remedies  has  failed  to  afford  a  full  and  fair  adjudication 
of  the  federal  contentions  raised,  either  because  the  state 
affords  no  remedy  ...  or  because  in  the  particular  case 
the  remedy  afforded  by  state  law  proves  in  practice 
unavailable  or  seriously  inadequate  ...  a  federal  court 
should  entertain  his  petition  for. habeas  corpus,  else  he 
would  be  remediless." 


Title  VI  of  the  bill  would  also  maintain  the  general 
conformity  of  the  standards  for  collateral  proceedings  involving 
state  prisoners  and  federal  prisoners  by  creating  a  time  limit 
for  federal  prisoners'  collateral  attacks  and  clarifying  the 
rules  governing  excuse  of  procedural  defaults  in  such 
proceedings.   The  collateral  attacks  of  federal  prisoners  on 
their  convictions  present  many  of  the  same  problems  and  involve 
many  of  the  same  abuses  as  habeas  corpus  applications  by  state 
prisoners.   Imposing  reasonable  constraints  on  such  attacks  is 
accordingly  an  equally  appropriate  reform.   As  Justice  O'Connor 
observed  for  the  Supreme  Court  in  United  States  v.  Frady: 

[T]he  Federal  Government,  no  less  than  the  States,  has 
an  interest  in  the  finality  of  its  criminal  judgments. 
In  addition,  a  federal  prisoner  .  .  .  unlike  his  state 
counterparts,  has  already  had  an  opportunity  to  present 
his  federal  claims  in  federal  trial  and  appellate 
forums  ....   lw]e  see  no  basis  for  affording  federal 
prisoners   a  preferred   status  when  they   seek 
post-conviction  relief.  10/ 

Finally,  Title  VI  would  institute  reforms  recommended 

by  Judge  Henry  Friendly  1_1_/  and  Professor  David  Shapiro  1_2/  in 

the  procedure  on  appeal  in  collateral  proceedings  and  the 

operation  of  the  exhaustion  requirement.   These  reforms  will 

improve  the  efficiency  of  habeas  corpus  proceedings  and  reduce 

the  litigating  burdens  presently  associated  with  them. 

10/   456  U.S.  152,  166  (1982).  . 

U^/   See  Friendly,  Is  Innocence  Irrelevant?  Collateral  Attack  on 
Criminal  Judgments,  38  U.  Chi.  L.  Rev.  142.  144  n.9  (1970) 
(access  to  appeal  in  collateral  proceedings) . 

_12/   Shapiro,  Federal  Habeas  Corpus:   A  Study  in  Massachusetts, 
87  Harv.  L.  Rev.  321,  358-59  (1$73)   (exhaustion  of  state 
remedies  should  not  be  prerequisite  to  denial  of  claims  on 
the  merits) . 


TITLE  VII  —  Drug  Enforcement  Amendments 
PART  A  -  Drug  Penalties 

Title  VII  of  the  bill,  which  contains  drug  enforcement 
amendments,  is  divided  into  two  parts.   Part  A  provides  a  more 
rational  penalty  structure  for  the  major  drug  trafficking 
offenses  punishable  under  the  Comprehensive  Drug  Abuse  Prevention 
and  Control  Act  of  1970  (21  U.S.C.  801  et  seg.).   Trafficking  in 
illicit  drugs  is  one  of  the  most  serious  crime  problems  facing 
the  country,  yet  the  present  penalties  for  major  drug  offenses 
are  often  inconsistent  or  inadequate.   This  title  primarily 
focuses  on  three  major  problems  with  current  drug  penalties. 

First,  with  the  exception  of  offenses  involving  marihuana 
(see  21  U.S.C.  6m(b)(5)),  the  severity  of  current  drug  penalties 
is  determined  exclusively  by, the  nature  of  the  controlled 
substance  involved.   While  it  is  appropriate  that  the  relative 
dangerousness  of  a  particular  drug  should  have  a  bearing  on  the 
penalty  for  its  importation  or  distribution,  another  important 
factor  is  the  amount  of  the  drug  involved.   Without  the  inclusion 
of  this  factor,  penalties  for  trafficking  in  especially  large 
quantities  of  extremely  dangerous  drugs  are  often  inadequate. 
Thus,  under  current  law  the  penalty  for  trafficking  in  500  grams 
of  heroin  is  the  same  as  that  provided  for  an  offense  involving 

10  grams.   This  title  amends  21  U.S.C.  841  and  960  to  prov.ide  for 
more  severe  penalties  than  are  currently  available  for  major 
trafficking  offenses. 

The  second  problem  addressed  by  this  title  is  the  current 
fine  levels  for  major  drug  offenses.  Drug  trafficking  is  enor- 
mously profitable.   Yet  current  fine  levels  are,  in  relation  to 
the  illicit  profits  generated,  woefully  inadequate.   It  is  not 
uncommon  for  a  major  drug  transaction  to  produce  profits  in  the 
hundreds  of  thousands  of  dollars.   However,  with  the  exception  of 
the  most  recently  enacted  penalty  for  distribution  of  large 
amounts  of  marihuana  (21  U.S.C.  8M1(b)(6)),  the  maximum  fine  that 
may  be  imposed  is  $25,000.   This  title  provides  more  realistic 
fine  levels  that  can  serve  as  appropriate  punishments  for,  and 
deterrents  to,  these  tremer;dously  lucrative  crimes. 


A   third   problem   addressed    by   this   title   is   the  diaparat* 
sentencing   for  offenses   involving  Schedule   I   and   II   substances, 
which   depends  on   whether   the   controlled    substance   involved    in   the 
offense   is   a   narcotic   or   non-narcotic   drug.      Offenses   involving 
Schedule   I   and   II   narcotic   drugs    (opiates   and   cocaine)    are 
punishable   by   a  maximum  of    15   years'    imprisonment   and   a   $25|000 
fine,    but   in   the   case   of  all   other    Schedule   I   and   II   substances, 
the     afimum   penalty   is   only   five  years'    imprisonment   and   a 
$15,000   fine.      The   same   penalty   is   applicable  in  the  case  of  a 
violation   involving  a   Schedule   III   substance.      This   penalty 
structure   is   at   odds   with   the   fact   that   non-narcotic   Schedule   I 
and    II   controlled   substances    include   such   extremely   dangerous 
drugs   as   PCP,    LSD,    methamphetamines ,    and   methaqualone ,    and 
federal   prosecutions   involving   these   drugs   typically   involve   huge 
amounts   of  illicit   income   and   sophisticated  organizations.      Title 
VII   would   correct   these   penalty   problems   in  the  areas   of   both 
drug  trafficking  and   importation/exportation  offenses. 

PART   E    -   Diversion   Control   Amendments 

The  Comprehensive  Drug  Abuse  Prevention  and  Control   Act  of  1970  (CSA) 
(P.L.    91-513)   has   been  in  effect  for  nearly  twelve  years,   during  which  time 
it  has   proven  to  be  a  relatively  effective  piece  of  legislation.     Through 
the  enforcement  of  its   provisions,   the  Drug  Enforcement  Administration  has 
actively  pursued  the  immobilization  of  major  drug  traffickers  and  has 
removed  from  the  illicit  market  significant  quantities  of  both  illicit 
and  diverted  licit  controlled  substances.     However,  over  this   period  several 
weaknesses   have  surfaced  which  adversely  affect  the  Federal   Government's 
ability  to  deal   effectively  with  the  menace  of  drug  abuse  in  the  United  States. 
Some  of  these  weaknesses   have  developed  due  to  the  changing  character  of  the 
i-Hicit  drug  trade  since  the  CSA  was  enacted.     Others  are  the  result  of 
omissions  or  unclear  language  in  the.  legislation.     The   proposed  Diversion 
Control   Amendments   included   in  Title  VII' of  the  Comprehensive  Crime  Control 
Act  of  1983  address   the  problem  of  diversion  of  legally  produced  controlled 
substances   into  the   illicit  market.      It  also  includes  provisions  to  reduce 
the  regulatory  burden  on  the  controlled  drug  industry. 


The  problem  of  abuse  of  drugs  diverted  from  legitimate  channels  is  a  major 
one  that  is  not  generally  well  recognized.  In  its  September  10,  1970  "Report 
on  the  Comprehensive  Drug  Abuse  Prevention  and  Control  Act  of  1970,"  the 
Committee  on  Interstate  and  Foreign  Commerce  noted  that,  as  of  late  1969, 
almost  50  percent  of  legitimately  produced  amphetamines  and  barbiturates  were 
being  diverted  into  illicit  channels.   It  was  the  intent  of  the  CSA  to  provide 
for  a  "closed"  system  of  drug  distribution  for  legitimate  handlers  of  controlled 
drugs  in  order  to  reduce  this  level  of  diversion. 

Despite  the  provisions  of  the  Act,  it  was  reported  in  the  1978  GAO 
Report  entitled,  "Retail  Diversion  of  Legal  Drugs--A  Major  Problem  With  No 
Easy  Solution,"  that  diversion  and  abuse  of  legal  drugs  may  be  involved 
in  as  many  as  7  out  of  10  drug-related  injuries  and  deaths.   During  the 
period  1980-1982,  between  60-70  percent  of  all  emergcTicy  room  controlled 
substance  mentions  involved  drugs  that  are  legitimate  in  origin  (source: 
Drug  Abuse  Warning  Network).  A  more  direct  measure  of  diversion  is  the  ■ 
documented  diversion  by  convicted  violators.  The  first  21  practitioners 
convicted  under  Operation  Script,  a  pilot  program  directed  against  regis- 
trant violators,  were  responsible  for  documented  diversion  of  approximately 
20.6  million  dosage  units  of  controlled  substances.  Operation  Script  was 
the  forerunner  of  DEA's  ongoing  Targeted  Registrant  Investigation  Program  (TRIP). 
At  least  one  of  those  convicted  was  responsible  for  diverting  between  4  and  5 
million  dosage  units  a  year.  These  convicted  defendants  constitute  only  a 
portion  of  the  defendants  under  Operation  Script,  who  in  turn  make  up  only 
a  small  portion  of  the  total  number  of  registrants  involved  in  diversion. 
In  FY  1982,  DEA  Initiated  320  cases  involving  willful  diversion  by  registrants. 
An  example  of  the  success  of  these  actions  is  the  investigation  of  the  so- 
called  "store  clinics"  operating  in  the  Detroit  area.  We  estimate  that  these 
"clinics"  distributed  between  6  and  7  million  dosage  units  of  Preludin,  Desoxyn, 
Dilaudld,  and  Talwin,  all  highly  abused  drugs,  over  a  two-year  period.  Twenty- 
nine  indictments  were  returned  in  this  case  on  two  physicians,  seven  pharmacists, 
and  six  corporations  for  a  variety  of  drug  charges  including  illegal  distribu- 
tion, conspiracy  and  continuing  criminal  enterprise.  Similar  success  has  been 
achieved  in  cases  against  the  "stress  clinics"  which  act  as  "prescription 
mills"  for'the  diversion  of  methaqualone.  Clearly,  diversion  by  registrants 
appears  to  be  much  greater  than  had  previously  been  estiipated.  These  figures 


involve  only  willful  diversion  and  do  not  include  theft,  fraud,  or  misprescribing 
which  add  to  the  problem. 

The  incentives  for  diverting  legally  produced  controlled  substances  are 
many  and  varied.   Certainly,  the  enormous  profits  involved  make  trafficking 
of  diverted  drugs  most  attractive.  A  single  dosage  unit  of  Dilaudid,  a 
synthetic  narcotic  which  can  be  purchased  by  a  pharmacy  or  doctor  for 
approximately  17«,  can  be  sold  on  the  streets  for  up  to  $60.00. 

Contributing  to  the  demand  for  and  the  price  of  diverted  drugs  is  the 
fact  that  heroin  availability  in  many  parts  of  the  United  States  has  been 
reduced  from  1971  levels  and  continues  to  remain  at  a  considerable  reduced 
level.  The  demand  for  a  wide  variety  of  diverted  drugs  to  supplement  poor 
quality  or  non-existent  heroin  continues  to  be  a  factor  affecting  the  diversion 
problem.  However,  it  is  clear  that  a  large  poly-drug  abusing  population 
has  developed  and  will  continue  to  have  a  preference  for  multiple  drug  use 
particularly  among  school  age  children.   In  some  cases,  legally  produced 
narcotics  have  replaced  narcotics  as  the  drug  of  choice. 

The  responsibility  for  enforcing  the  provisions  of  the  Controlled  Substances 
Act,  as  they  pertain  to  legally  produced  controlled  substances,  lies  with 
DEA's  Office  of  Diversion  Control.  Created  to  deal  specifically  with  this 
problem,  this  office  uses  a  wide  range  of  tools  to  combat  diversion.   It 
conducts  periodic  investigations  of  manufacturers  and  distributors;  criminal 
investigations  of  violative  registrants;  maintains  the  "closed  system"  through 
the  registration  process;  sets  production  limits  on  Schedule  I  and  II  substances; 
places  drugs  in  the  appropriate  schedule  of  the  CSA;  authorizes  and  monitors 
imports  and  exports  of  controlled  substances;  participates  in  international 
drug  control  bodies;  and  conducts  a  variety  of  other  activities  to  control 
diversion.  The  system  of  diversion  controls  in  the  United  States  is  recognized 
and  admired  worldwide. 

Despite  the  successes  of  our  diversion  programs,  a  major  problem  with  . 
combating  the  diversion  problem  continues  to  be  the  source  of  the  diversion. 
Under  the  provisions  of  the  Act,  DEA  has  been  successful  in  reducing  diversion 
at  the  manufacturer/distributor  level  to  a  relatively  small  portion  of  the 
total  drugs  diverted  each  year.  This  success  has  been  a  direct  result  of  the 
authority  to  regulate  this  level  of  the  "closed"  distribution  chain.  Registra- 
tion to  manufacture  and  distribute  controlled  substances  is  issued  only  when 
clearly  consistent  with  public  interest.  Authority  to  enforce  the  Act  through 

25-694  0-84-12 


administrative,  civil,  and  criminal  statutes  is  clear  at  this  level,  and 
mechanisms  exist  to  control  diversion.  This  same  level  of  authority  does  not 
extend  to  the  practitioner  level.   It  is  at  the  practitioner  level  that 
80-90  percent  of  all  diversion  occurs.  Registration  of  practitioners  is 
predicated  on  authorization  of  the  state  in  which  they  practice.  Grounds 
for  denial  or  revocation  are  extremely  limited. 

This  difference  in  the  level  of  authority  between  Federal  and  state 
governments  concerning  registration  requirements  established  their  respective 
roles  in  the  area  of  drug  diversion.  Since  the  inception  of  the  Act,  the 
Federal  effort  has  been  directed  primarily  at  the  upper  level  of  the  distribution 
chain,  the  manufacturers  and  distributors.  The  states  were  left  to  monitor 
and  enforce  compliance  at  the  practitioner  level.  However,  the  level  of 
diversion  at  the  practitioner  level  demonstrates  that  the  states  have 
not  been  able  to  maintain  effective  controls  against  diversion.  As 
reported  in  the  "Comprehensive  Final  Report  on  State  Regulatory  Agencies 
and  Professional  Associations,"  legislative  deficiencies  and  organizational 
and  resource  problems,  have  all  rendered  many  states  ineffectual.  As  a 
result,  the  Federal  Government  has  had  to  increase  its  support  of  the  states 
in  combating  practitioner  diversion.  This  support  has  taken  many  forms  and 
includes  both  enforcement  and  non-enforcement  efforts  and  a  provision  to 
expand  this  effort  is  included  in  the  proposed  amendments. 

A  major  part  of  the  Diversion  Control  Amendments  addresses  the  issue  of 
diversion  at  the -practitioner  level  where  it  is  estimated  that  80-90  percent 
of  diversion  from  legitimate  channels  occurs.  However,  we  have  not  strengthened 
our  ability  to  combat  the  diversion  problem  by  placing  undue  burdens  on  the 
drug  industry.  Whenever  possible,  these  amendments  move  to  reduce  the  burden 
on  the  vast  majority  of  registrants  who  abide  by  both  the  letter  and  the  spirit 
of  the  law.  Some  of  the  proposed  amendments  were  developed  as  the  result  of 
comments  received  from  industry  and  the  public  and  through  the  regulatory  review 

The  major  areas  that  the  Diversion  Control  Amendments  address  are  the 

1 .    Expansion  of  State  Assistance  Efforts 

In  the  GAO  Report,  "Retail  Diversion  of  Legal  Drugs,"  it  was  recommended 
that  Congress  enhance  the  Drug  Enforcement  Administration's  role- by  authorizing 
it  to  either: 


—  exercise  direct  regulatory  authority  over  retail 
level  practitioners,  or 

implement  grant  programs  for  assisting  states  in 
controlling  diversion. 

Due  to  the  complexity  of  the  problem,  the  varied  degree  of  state  level 
capabilities  and  the  need  for  prompt  and  effective  action  at  the  practitioner 
level,  a  combination  of  both  avenues  is  most  appropriate.  The  Federal 
effort  will  continue  at  the  highest  level  of  practitioner  diversion,  where 
highly  complex,  multi-state  operations  clearly  warrant  Federal  action. 
However,  it  is  clear  that  the  bulk  of  the  enforcement  responsibility  will 
be  at  the  state  and  local  level  where  these  registrant  divertors  have  a 
significant  impact  on  the  abuse  of  drugs  in  their  locale.  To  increase  the 
ability  of  the  state  and  local  authorities  to  deal  with  this  currently 
overwhelming  problem,  we  have  proposed  a  new  state  assistance  effort  aimed 
against  the  diversion  of  legally  produced  drugs. 

We  have  proposed  an  amendment  to  Section  503  to  provide  new  grant  authority 
for  the  expansion  of  assistance  to  states  for  curtailing  practitioner  diversion. 
The  assistance  would  be  aimed  at  those  areas  which  have  been  identified  by 
DEA's  "Comprehensive  Final  Report  on  State  Regulatory  Agencies  and  Professional 
Associations,"  and  subsequent  GAO  reports,  as  the  major  problem  areas 
inhibiting  effective  state  action  in  curtailing  practitioner  diversion. 
These  problems  include  legislative  deficiencies,  organizational  and  resource 
problems,  and  inadequate  training.  Grants  would  be  established  for  a  specified 
term  with  appropriate  matching  funds  provided  by  the  state.  Each  grant  will 
be  for  a  specific  effort  aimed  at  the  diversion  problem. 

Through  the  expansion  of  its  ability  to  assist  the  states'  efforts,  DEA 
would  identify  and  provide  the  necessary  resources  to  correct  many  of  these 
deficiencies.   In  many  cases,  the  first  step  in  the  process  would  be  to 
establish  an  Evaluation  Task  Force  to  evaluate  current  state  capabilities 
and  to'identify  specific  needs.  Based  on  determined  needs,  funding  would 
then  be  provided  for  such  projects  as  the  preparation  of  improved  state 
legislation  regarding  controlled  substance  handlers;  revisions  in  state 
statutes  concerning  the  authority,  duties  and  responsibilities  of  state 
regulatory  boards;  establishing  improved  systems  of  controlled  substance 
licensing;  and  initiation  of  programs  to  establish  Administrative  Law  Judge 
provisions  to  adjudicate  actions  against  registrants. 


The  expf.nsion  of  the  state  assistance  authority  of  DEA  is  a  significant 
step  in  ced'jcing  the  diversion  of  legitimately  produced  controlled  substances. 
The  Grant- 111- Ai deprogram,  combined  with  increased  support  by  DEA  in  the  areas 
of  training,  intelligence  support,  legal  assistance  and  cooperative  informa- 
>  tion. exchange,  will  be  part  of  a  comprehensive  program  aimed  at  combating 
practitioner  diversion  at  the  state  and  local  level. 

2.  Strengthening  of  Registration  Requirements 

Current  statutory  authority  to  deny,  revoke,  orjsuspend  the  DEA 
registration  of  a  practitioner  is  limited  to  three  criteria.  Action  can  be 
taken  upon  a  finding  that  a  registrant  has: 


(1)  materially  falsified  an  application, 

(2)  been  convicted  of  a  drug-related  felony,  and 

(3)  had  their  state  license  suspended,  revoked  or  denied. 

The  first  criterion  has  proven  virtually  useless.  The  third  criterion 
is  very  limited  because  of  the  difficulty  states  have  in  taking  such  action. 
This  leaves  the  conviction  of  a  drug-related  felony  as  the  only  practical 
avenue  for  action.  Unfortunately,  many  practitioners  who  are  a  clear  and 
present  threat  to  the  health -and  safety  of  the  community  will  never  be  brought 
to  trial  in  the  overloaded  judicial  system.  These  registrants  will  continue 
to  divert  into  the  illicit  traffic  while  the  legal  system  slowly  grinds  on. 

Amendment  of  Section  303  expands  the  standards  for  practitioner  registra- 
tion beyond  the  current  sole  requirement  of  the  authorization  of  the  jurisdiction 
in  which  he/she  practices.  Additional  standards  pertaining  to  consistency 
with  the  public  interest  are  added.  They  include  the  recommendation  of  the 
appropriate  state  licensing  or  disciplinary  authority,  prior  conviction 
record  with  respect  to  controlled  substances,  and  compliance  with  applicable 
Federal,  state  and  local  laws  relating  to  controlled  substances.  This  amendment 
does  not  provide  for  a  detailed  Federal  review  of  all  practitioners,  but  pro- 
vides the  opportunity  for  action  in  the  most  egregious  cases.   It  also  provides 
for  the  full  protection  of  the  individual's  rights  through  administrative  pro- 
cedures that  provide  the  right  to  a  full  hearing  and  judicial  appeals. 

3.  Extended  Registration  Period 

The  amendment  to  Section  302  extends  the  registration  period  from  1  year 
to  3  years  for  practitioners.  The  practitioner  level  represents  almost  98  percent 
of  all  DEA  registrants.  This  move  will  reduce  the  paperwork  required  of  these 
registrants  and  will  provide  substantial  cost  benefits  to  the  Government. 


These  benefits  will  be  used  to  provide  improved  service.  An  additional 
amendment,  necessary  to  maintain  an  effective  registration  system,  amends 
Section  307  by  requiring  registrants  to  report  changes  of  address. 
4.    Scheduling  Procedures  ,      '      * 

The  provision  for  an  emergency  scheduling  procedure,  to  be  utilized  in  the 
event  of  an  imminent  danger  to  the  public  safety,  is  added  to  Section  201. 
-This  provision  allows  DEA  to  control  a  drug  for  one  year  on  an  emergency  basis, 
during  which  time  final  determination  will  be  made  based  on  routine  scheduling 
procedures  under  Section  201.  Controls  would  be  limited  to  those  activities 
necessary  to  assure  the  protection  of  the  public  from  drugs  of  abuse  that 
appear  in  the  illicit  traffic  too  rapidly  to  be  effectively  handled  under  the 
lengthy  routine  control  procedure.  The  Department  of  Health  and  Human  Services 
is  provided  a  30-day-  period  during  which  they  may  stop  the  implementation  of 
control . 

-  5.    Miscellaneous  Regulatory  Provisions 

A  variety  of  other  provisions  involve  the  clarification  of  record  keeping 
requirements,  simplification  and  expansion  of  the  authority  to  exempt  con- 
trolled drug  preparations  without  abuse  potential  from  the  application 
of  the  regulatory  provisions  of  the  Act,  facilitate  the  importation  of  small 
quantities  of  controlled  substances  used  exclusively  for  scientific,  analytic 
or  research  purposes,  and  several  other  actions  to  ease  the  burden  on  the 
controlled  drug  industry  without  increasing  the  danger  to  public  safety. 

This  has  only  been  a  brief  description  of  the  key  proposed  amendments. 
We  are  available  at  any  time  to  meet  with  the  Committee  staff  to  discuss  each 

.proposed  amendment  in  detail  and  answer  any  questions.   We  believe  that  this 
is  a  balanced  package  that  will  decrease  the  burden  on  the  law  abiding  registrant, 
who  is  clearly  in  the  majority,  while  at  the  same  time  enhancing  our  ability 
to  successfully  attack  the  drug  diversion  problem. 

We  are  currently  embarking  on  the  largest,  most  comprehensive  effort 
ever  levied  against  drug  trafficking  and  abuse.  It  is  our  firm  belief,  which 
is  supported  by  death  and  injury  data,  that  no  such  effort  would  be  complete 
without  a  major  program  directed  at  the  diversion  of  legally  produced 
drugs  into  the  illicit  market. 



An  integral  part  of  the  President's  comprehensive  crime 
program  is  the  proposal  to  provide  assistance  to  state  and  local 
law  enforcement  In  order  to  enlarge  their  capacity  to  attack  the 
problems  of  violent  crime.   The  primary  responsibility  and  the 
direct  burden  for  enforcement  of  criminal  laws  and  programs  of 
crime  prevention  fall  on  state  and  local  governments,  which 
Increased  their  expenditures  for  criminal  justice  by  1A6  percent 
during  the  1970 's.   State  and  local  governments  account  for  87 
percent  of  the  total  expenditures  for  criminal  Justice.   Title 
VIII  is  a  couhterbalance  to  strengthened  Federal  law  enforcement 
by  providing  local  law  enforcement  with  additional  resources 
focused  on  violent  crime,  repeat  offenders,  victim/witness 
assistance,  and  crime  prevention. 

The  proposed  Justice  Assistance  Act  is  based  on  agreements 
reached  in  discussions  involving  members  of  the  Senate  and  House 
Judiciary  Committees,  representatives  of  the  Department  of 
Justice,  and  the  White  House.   It  closely  parallels  the  financial 
"assistance  provisions  of  legislation  passed  by  the  Senate  and 
■Hou^e  during  the  97th  Congress,  following  extensive  public 
"hearings.   It  embraces  the  concept  of  a  highly-targeted  program 
oT -financial  assistance  to  state  and  local  criminal  Justice, 
operating  within  a  new,  streamlined,  and  efficient  organizational 
structure.   The  proposal  Incorporates  the  lessons  learned  from 
past  experience  with  law  enforcement  assistance  programs  and 

focuses  the  available  resources  on  a  very  limited  number  of  high 
priority  objectives. 

The  state  and  local  financial  assistance  portion  of  current 
law  (the  Omnibus  Crime  Control  and  Safe  Streets  Act  of  1968,  as 
amended),  has  been  phased  out.   No  funds  for  that  activity,  the 
former  Law  Enforcement  Assistance  Administration,  have  been 
appropriated  since  Fiscal  Year  1980.   The  prior  history  of  LEAA, 
however,  provides  us  with  some  Important  lessons.   It  shows,  for 


example,  that  after  the  expenditure  of  $8  billion  over  12  years. 
money  alone  was  not  the  answer  to  the  problem  of  crime.   It 
demonstrated  that  a  program  whose  priorities  were  unclear  and 
constantly  shifting  resulted  In  minimal  payoff.   And  the  history 
Indicates  that  overly  detailed  statutory  and  regulatory 
specification  produces  mountains  of  red  tape  but  little  progress 
In  the  battle  against  crime. 

We  have  also  learned,  however,  that  the  concept  of  Federal 
seed  money  for  carefully  designed  programs  does  work,  and  that 
certain  carefully  designed  projects  can  have  a  significant  Impact 
on  criminal  Justice.  . 

Title  VIII  reflects  an  appreciation  of  these  lessons  and 
embodies  the  program  concepts  agreed  upon  last  year  In  the 
discussions  between  members  of  the  Senate,  the  House,  and 
representatives  of  the  Administration.   It  strips  away  the 
compU-cated  and  expensive  application  and  administrative  red  tape 
required  under  the  earlier  program  and  consolidates  the 
management  of  the  .program  in  a  single  unit  of  the  Department  of 
Justice.   Moreover,  it  continues  the  presently  authorized  Justice 
research  and  statistical  programs  and  insures  coordination  and 
Interaction  between  the  products  of  research  and  the  programs 
implemented  under  the  financial  assistance  provisions  of  the 

The  proposal  would  establish  within  the  Department  an  Office 
of  Justice  Assistance  (OJA),  headed  by  an  Assistant  Attorney 
General.   Within  this  office  would  be  three  separate  units — the 
Bureau  of  Justice  Statistics  (BJS),  the  National  Institute  of 
Justice  (NIJ),  and  a  new  Bureau  of  Justice  Programs  (BJP) — each 
headed  by  a  director  appointed  by  the  Attorney  General.   The 
directors  would  be  responsible  for  the  day-to-day  management  of 
their  units  and  would  have  grantmaking  authority,  subject  to  the 
delegation,  coordination-,  and  policy  guidance  of  the  Assistant 
Attorney  General. 


-The  organizational  structure  established  under  current  law 
(JSIA)  was  Intended  to  admlrtlster  programs  for  which  $800  million 
were  authorized  and  was  expected  to  be  engaged  in  virtually  every 
aspect  of  the  state  and  local  criminal  Justice  systems.   The 
targeted  program  proposed  by  Title  VIII,  on  the  other  hand,  will 
operate  at  a  fraction  of  that  amount  and  does  not  require  the 
elaborate  administrative  structure  provided  In  current  law. 
Moreover,  the  unified  and  consolidated  administrative  structure 
under  the  direction  of  an  Assistant  Attorney  General  gives  new 
emphasis  to  Federal  participation  and  cooperation  with  state  and 
local  criminal  Justice.   The  Assistant  Attorney  General  will  be 
the  focal  point  of  the  Department's  interrelationship  with  state 
and  local  governments  and  will  serve  as  the  spokesperson  for  the 
Department  on  state/local  criminal  Justice  issues  and  as  liaison 
with  the  academic  communities  on  Justice  research  and  statistics. 

Both  the  National  Institute  of  Justice  and  the  Bureau  of 
Justice  Statistics  would  continue  to  carry  out  the  Justice 
research  and  statistical  programs  authorized  in  the  current 
statute.   The  Bureau  of  Justice  Programs  would  administer  the  new 
technical  and  financial  assistance  program.   All  would  be 
directly  involved  4n  strengthening  the  capacity  of  state  and 
local  criminal  Justice  to  address  the  problem  of  crime. 

Advising  the  Assistant  Attorney  General  would  be  a  Justice 
Assistance  Advisory  Board  appointed  by  the  President.   This 
Board,  replacing  the  two  separate  boards  currently  advising  the 
NIJ  and  BJS,  will  consider  the  full  range  of  criminal  Justice 
Issues. and  policies,  rather  than  the  compartmentalized  and 
narrower  view  of  only  research  or  only  Justice  statistics. 

Under  the  proposal,  the  BJP  would  have  the  responsibility  to 
provide  technieal  assistance,  training,  and  funds  to  state  and 
local  criminal  Justice  and  nonprofit  organizations.   This 
assistance  would  be  provided  through  a  combination  of  block  and 
dlsorctlonary  grant  funds. 


The  block  grant  funding  will  provide  each  state  with  an 
allocation  based  on  Its  relative  population  and  a  proportional 
share  of  the  funds  are  to  be  passed  through  to  local 
governinents.   The  Federal  funds  would  be  matched  50/50  and 
Individual  projects  would  be  limited  to  no  more  than  three  years 
of  Federal  assistance.   Moreover,  the  use  of  the  Funds  is  limited 
to  specific  types  of  projects  which  have  a  demonstrated  track 
record  of  success. 

We  envision  a  simplified  application  procedure  for  block 
grant  funds  under  which  the  cities  and  counties  would  submit 
abbreviated  applications  to  the  State.   Essentially,  these 
applications  would  indicate  which  of  the  authorized  programs  the 
locality  intends  to  carry  out,  data  to  demonstrate  the  level  of 
need  for  assistance,  the  amount  of  funds  required,  and  the  level 
of  local' funds  available  to  match  the  Federal  dollars.   The  state 
office,  in  turn,  would  compile  the  local  applications  along  with 
those  from  state  criminal  Justice  agencies,  rank  them  according 
to  Indices  of  need,  and  submit  the  package  along  with  the  various 
certifications  required  under  the  Act  as  a  single  application  for 
the  state's  allocation  of  funds. 

The  discretionary  funds  would  focus  on  training  and 
technical  assistance,  multi-Jurlsdlctlonal  and  national  programs, 
and  demonstration  projects  to  test  new  antl-crlme  ideas. 

In  summary,  the  assistance  provisions  of  the  proposal  would 
reduce  from  four  to  one  the  number  of  Presldentlally  appointed 
officials,  replace  two  advisory  bodies  with  a  single  Board; 
consolidate  the  research,  statistical  and  financial  assistance 
efforts  into  a  single  organization  headed  by  an  Assistant 
Attorney  General;  eliminate  the  bureaucratic  administrative 
requirements  currently  imposed  on  state  and  local  governinents, 
and  provide  funds  and  technical  assistance  to  local  law 
enforcement  for  activities  directly  related  to  violent  crime, 
repeat  offenders,  victim/witness  assistance,  and  crime 


Also  included  in  Title  VIII  is  a  provision  which  would 
establish  a  program  of  emergency  law  enforcement  assistance. 
Part  L  would  authorize  the  Attorney  General  to  approve  or 
disapprove  applications  from  state  governors  for  the  designation 
of  a  "law  enforcement  emergency  Jurisdiction",  when  an  uncommon 
situation  develops  in  which  state  and  local  resources  are 
Inadequate  to  provide  for  the  protection  of  the  lives  and 
property  of  citizens  or  for  the  enforcement  of  criminal  laws. 
When  such  an  emergency  exists,  assistance  in  the  form  of 
equipment,  training,  intelligence  information,  and  technical 
expertise  can  be  provided  by  Federal  law  enforcement  agencies. 
In  addition,  the  Office  of  Justice  Assistance  would  be  authorized 
to  provide  funds  to  the  emergency  Jurisdiction.   We  anticipate 
that  this  special  aid  would  be  made  available  in  a  very  limited 
number  of  situations,  such  as  the  child-murder  investigations  in 
Atlanta,  the  destruction  of  police  communications  by  Hurricane 
Frederick,  and  the  Mount  St.  Helen  volcanic  eruption. 

Two-  additional  matters  addressed  in  Title  VIII  pertain  to 
the  Public  Safety  Officers'  Benefits  program  and  the  Prison 
Industries  certification  authority. 

The  Public  Safety  Officers'  Benefits  Act  of  1976  (PSOB) 
authorizes  the  payment  of  a  $50,000  benefit  to  the  survivors  of 
law  enforcement  officers  and  firefighters  who  die  as  the  result 
of  an  Injury  sustained  in  the  line  of  duty.   Excluded  from 
benefits  under  the  Act,  however,  are  deaths  resulting  from  the 
voluntary  intoxication  or  Intentional  misconduct  of  the 
officer.   Our  experience  in  administering  the  program  over  the 
past  six  years  has  produced  evidence  of  some  difficulty  in 
applying  these  exceptions  in  full  accord  with  the  legislative 
history  of  the  Act.   Consequently,  Title  VIII  Includes  a 
definition  of  the  term  "intoxication".   Und«r  the  proposal,  no 
benefit  would  be  paid  when  the  deceased  officer's  blood  alcohol 
level  Is  between  .lOJt  and  .2Qt ,    unless  there  Is  convincing  • 


evidence  that  the  officer  was  not  acting  in  an  intoxicated  manner 
immediately  prior  to  his  death.   No  payment  io  permitted  if  the 
blood  alcohol  level  is  .20%  or  greater. 

The  addition  of  language  to  exclude  PSOB  benefits  in 
instances  of  "gross  negligence"  is  a  formalization  of  the 
legislative  intent  expressed  by  the  original  sponsors  of  the  bill 
and  which  was  believed  to  have  been  adequately  addressed  by  the 
prohibition  against  payment  if  the  officer's  death  was  caused  by 
"intentional  misconduct".   However,  our  experience  and  litigation 
on  the  "gross  negligence"  issue  demonstrates  that  the  more 
specific  language  of  the  Administration-  proposal  is  required. 
(See  Harold  v.  U.S.  F.  2d  5^7    (Ct.  CI.  1980).) 

The  amendment  to  the  Prison  Industry  Enhancement  authority 
is  designed  to  increase  from  7  to  20  the  number  of  projects 
eligible  for  exemption  from  Federal  restrictions  on  the  sale  and 
transportation  of  prisoner-made  goods.   The  amendment  also  makes 
several  technical  changes  to  present  law  to  permit  prisons 
seeking  exemption  to  obtain  it  more  easily. 

The  original  Prison  Industry  Enhancement  legislation  was 
enacted  in  1979  as  part  of  the  Justice  System  Improvement  Act  and 
the  7  projects  It  authorized  have  been  designated.   The  early 
evaluations  of  the  program  indicate  that  the  designated  projects 
have  been  successful  in  teaching  inmates  marketable  Job  skills, 
•reducing  the  need  for  their  families  to  receive  public 
assistance,  and  decreasing  the  net  cost  of  operating  correctional 
facilities.   A  modest  expansion  of  the  program  to  20  projects 
will  permit  willing  and  able  prisons  to  participate  in  the 
program  and  allow  the  Department  to  better  evaluate  which  prison 
industry  projects  best  accomplish  the  program's  goals. 

One  technical  amendent  to  the  current  law  would  exempt  goods 
produced  by  designated  projects  from  a  Federal  law  which  permits 
a  state  to  keep  prison-made  goods  in  another  state  from  crossing 
its  borders.   The  final  amendment  would  require  states  to  provide 


compensation  to  Injured  Inmates,  but  not  necessarily  under  the 
state's  workers'  compensation  law,  as  the  current  legislation 
requires.   This  change  Is  necessary  because  many  states  cannot 
offer  workers'  compensation  to  Inmates  under  their  own  laws. 

TITLE  IX  —  Surplus  Property  Amendment 

The  last  decade  has  seen  dramatic  increases  in  the  nation'' s 
prison  population.   Between  1973  and  1983  the  prison  population 
has  grown  from  204,211  to  over  400,000,  an  increase  of  98  percent 
in  one  decade.   By  comparison,  during  the  same  period,  the  total 
U.S.  population  has  increased  by  only  11  percent. 

The  rapid  rise  in  prison  population  has  overcrowded  correc- 
tional facilities  and  created  a  number  of  serious  problems. 
Overcrowding  results  in  increased  prison  violence.   Other 'nega- 
tive effects  of  overcrowding  are  idleness  and  a  reduction  in  the 
number  of  correctional  programs  available  to  inmates. 

More  than  half  of  the  State  correctional  systems  are  under 
court  orders  stemming  from  overcrowding.   Judges  are  sometimes 
reluctant  to  sentence  offenders  to  overcrowded  institutions. 
The  lack  of  adequate  prison  space,  in  effect,  hampers  the  opera- 
tion of  the  criminal  justice  system  at  all  levels. 

Many  States  have  responded  to  overcrowding  by  double-bunking 
and  using  tents  and  trailers.   While  this  approach  provides  a 
temporary  solution,  it  is  neither  satisfactory,  safe  nor  humane. 

The  construction  of  new  facilities  to  meet  this  need  is 
extremely  expensive.   It  can  cost  anywhere  from  $30,000  to  $90,000 
per  bed  to  construct  a  prison  facility.   And,  it  can  take  anywhere 
from  five  to  seven  years  to  obtain  funds  and  then  construct  and 
complete  a  facility.   An  immediate,  short-term,  low  cost  solution 
is  desperately  needed. 

One  solution  to  this  problem  is  amendment  of  the  Federal 
Property  and  Administrative  Services  Act  of  1949  to  provide 
Federal  surplus  property  to  State  and  local  governments  for  cor- 
rectional use  at  no  cost.   Currently,  the  Federal  Property  and 
Administrative  Services  Act  of  1949,  as  amended  (40  U.S.C.  484) 
permits  transfer  of  surplus  federal  property  to  States  and 


localities  for  public  benefit  use,  not  specif Icially  including 
correctional  facilities.   We  support  legislation  that  would 
amend  the  law  to  permit,  specifically,  transfer  of  federal  real 
and  related  personal  property  to  States  for  correctional  use. 
Caking  benefits  accrued  to  the  United  States  into  account  in 
fixing  the  sale  or  lease  price.   We  support  the  inclusion  of 
proposed  correctional  use  properties  as  eligible  for  transfer. 
In  order  to  encourage  and  facilitate  these  types  of  transfers 
and  to  meet  the  current  pressing  need  for  more  correctional 
facilities,  we  propose  that  these  transfers  be  permitted  without 
monetary  consideration  to  the  United  States. 

The  Attorney  General's  Task  Force  on  Violent  Crime  recommended 
in  its  first  report  that  the  Attorney  General  work  with  the  appro- 
priate governmental  authorities  to  make  available,  as  needed  and 
where  feasible,  abandoned  military  bases  for  use  by  States  and 
localities  as  correctional  facilities  on  an  interim  and  emergency 
basis  only.   The  report  also  asks  the  Attorney  General  to  work 
with  the  appropriate  government  authorities  to  make  available, 
as  needed  and  where  feasible,  federal  property  for  use  by  States 
and  localities  as  sites  for  correctional  facilities. 

As  a  direct  result  of  the  findings  of  the  Task  Force  on 
Violent  Crime,  the  Attorney  General  directed  the  Bureau  of  Prisons 
to  form  a  clearinghouse  for  correctional  facilities.   The  clear- 
inghouse, as  it  now  operates,  can  provide  information  to  concerned 
parties  and  serve  as  liaison  with  GSA  and  the  Department  of 
Defense  regarding  potential  correctional  facilities,  such  as 
former  military  bases.   We  view  the  clearinghouse  function  as  an 
information  pipeline  that  is  necessary,  but  independent  of  the 
surplus  and  disposal  actions,  which  should  be  performed  by  GSA. 
Four  States  have  acquired  surplus  property  for  correctional  use, 
but  under  existing  law  they  must  either  lease  or  purchase  the 
property  at  fair  market  value.   This  is  a  financial  burden  that 
many  can  hardly  afford  to  bear.   A  more  workable  solution  is 

At  present,  State  and  local  governments  must  pay  for  surplus 
Federal  property  they  intend  to  use  for  correctional  purposes. 


By  amending  the  Federal  Property  and  Administrative  Services  Act 
of  1949  to  permit  conveyance  or  lease,  at  no  cost,  of  appropriate 
surplus  Federal  properties  to  State  and  local  governments  for 
correctional  use,  we  can  provide  to  State  and  local  governments 
immediate  additional  capacity  while  relieving  State  and  local 
budgets  of  the  fiscal  burden  of  constructing  new  facilities. 


The  purpose  of  Title  X  of  the  Administration's  bill  is  to 
provide  constitutional  procedures  for  the  imposition  of  capital 
punishment.   Various  provisions  of  the  United  States  Code  now 
authorize  the  imposition  of  the  sentence  of  death  for  crimes  of 
homicide,  treason,  and  espionage.   However,  in  all  but  one 
instance,  these  sentences  are  unenforceable  because  they  fail  to 
incorporate  a  set  of  legislated  guidelines  to  guide  the  sen- 
tencer's  discretion  in  coming  to  a  determination  whether  the 
sentence  of  death  is  merited  in  a  particular  case.V   This 
requirement  was  first  articulated  by  the  Supreme  Court  in  its 
decision  in  Furman  v.  Georgia,  408  U.S.  238  (1972).   In  a  series 
of  decisions  following  Furman,  the  Court  has  given  further 
guidance  on  the  constitutional  requisites  of  a  statute  authoriz- 
ing the  imposition  of  capital  punishment.   Notable  in  this  series 
of  cases  was  a  group  of  landmark  death  penalty  decisions  in  which 
the  Court  held  that  the  death  penalty  was  a  constitutionally 
permitted  sanction  if  imposed  under  certain  procedures  and 
criteria  which  guarded  against  the  unfettered  discretion  con- 
demned in  Furman ,  but  which  retained  sufficient  flexibility  to 

2/  Only  the  death  penalty  provisions  of  the  aircraft  piracy 

statute,  49  U.S.C.  1473(c),  which  were  enacted  after  Furman  v. 
Georgia,  408  U.S.  238  (1972),  appear  to  comport  with  the  death 
penalty  decisions  of   the  Supreme  Court  over  th-e  last  decade. 


allow  the  consideration  of  aggravating  and  ^litig£^.tlng  factors  in 
each  case.^/ 

In  the  decade  since  the  Furman  decision,  two-thirds  of  the 
States  have  enacted  laws  to  restore  the  death  penalty  as  an 
available  sanction  for  the  most  serious  crimes  when  committed 
under  particularly  reprehensible  circumstances.   During  this  same 
period,  the  Congress  has  on  several  occasions  considered  legisla- 
tion to  provide  constitutional  procedures  that  would  permit  the 
restoration  of  the  death  penalty  to  the  federal  criminal  justice 
system,  but  with  the  exception  of  a  death  penalty  provision 
included  in  anti-aircraft  hijacking  legislation  in  197^,  no  such 
statute  has  been  passed  by  the  Congress. 

As  the  decisions  of  the  Supreme  Court  over  the  past  ten 
years  have  made  clear,  the  death  penalty  is  a  constitutionally 
permitted  sanction  for  the  most  grave  offenses,  committed  under 
aggravating  circumstances,  provided  it  is  imposed  under  proce- 
dures that  guard  against  arbitrariness  and  disproportionality . 
Nonetheless,  enactment  of  legislation  to  permit  reinstitution  of 
the  death  penalty  at  the  federal  level  has  been  a  controversial 
issue,  because  of  strongly  felt,  but  disparate,  views  on  the 
propriety  of  restoring  the  availability  of  the  death  penalty  as 
an  element  of  the  federal  criminal  justice  system. 

We  are  aware  that  there  are  men  of  ability,  goodwill,  and 
conscience  who  believe  that  it  is  never  justified  for  society  to 
deprive  an  individual  of  life,  however  grave  and  despicable  may 
have  been  his  crimes  and  however  much  a  threat  his  actions  may 
pose  to  others  in  the  community  or  to  the  survival  of  the 
community  itself.   But  while  recognizing  these  views,  this 
Administration  does  not  subscribe  to  them.   As  both  the  President 
and  the  Attorney  General  have  repeatedly  indicated  in  public 
statements,  we  support  the  imposition  of  the  death  penalty  under 
carefully  circumscribed  conditions  for  the  most  serious  crimes  -- 

2,/  Gregg  v.  Georgia,  1428  U.S.  153  (1976);  Proffitt  v.  Florida, 

^28   U.S.  242  (1976);  Jurek  v.  Texas,  U2S  U.S.  262  (1976); 

Woodson  V.  North  Carolina,  428  U.S.  280  (1976);  and  Roberts 

V.  Louisiana,  428  U.S.  325  (1976).  '  


a  position  also  held  by  a  majority  of  the  American  public. 3/ 

In  our  view,  the  death  penalty  is  warranted  for  two  princi- 
pal reasons.   First,  while  studies  attempting  to  assess  the 
deterrent  effect  of  the  penalty  have  reached  conflicting  results, 
we  believe  that  common  sense  supports  the  conclusion  that  the 
death  penalty  can  operate  as  a  deterrent  for  certain  crimes 
involving  premeditation  and  calculation,  and  that  it  will  thus 
save  the  lives  of  persons  who  would  otherwise  become  the  perman- 
ent and  irretrievable  victims  of  crime.   Second,  society  does 
have  a  right  —  and  the  Supreme  court  has  confirmed  that  right  -- 
to  exact  a  just  and  proportionate  punishment  on  those  who 
deliberately  flout  the  most  basic  requirements  of  its  laws;  and 
there  are  some  offenses  which  are  so  harmful  and  so  reprehensible 
that  no  other  penalty,  not  even  life  imprisonment  without  the 
possibility  of  parole,  would  represent  an  adequate  response  to 
the  defendant's  conduct. 

In  the  97th  Congress,  the  Senate  Judiciary  Committee  devoted 
considerable  effort  to  the  development  of  leg.islation  that  would 
establish  constitutional  procedures  for  the  imposition  of  the 
death  penalty  on  the  federal  level.   The  bill  reported  by  the 
Committee,  S.  114,  improved  on  bills  introduced  in  earlier 
Congresses  and  incorporated  provisions  to  comport  with  the  Supreme 
Court's  capital  punishment  decisions  over  the  past  decade.   The 
provisions  of  Title  X  of  the  Administration's  bill  are  based, 
with  only  minor  modifications,  on  this  legislation  approved  by 
the  Judiciary  Committee  in  the  last  Congress.   Also,  they  differ 
in  only  minor  respects  from  S.  538,  death  penalty  legislation 
now  pending  consideration  by  the  Committee .V 

The  primary  focus  of  the  provisions  of  Title  X  is  on  the 
establishment  of  constitutional  procedures  for  the  imposition  of 
the  death  penalty.   For  the  most  part,  the  scope  of  offenses  for 
Vhlch  capital  punishment  may  be  considered  as  a  sanction  remain 

3/  See  S.  Rep.  No.  97-143,  97th  Cong.,  1st  Sess.  19  (1981). 

V  The  Department's  report  on  S.  538  will  soon  be  transmitted 
to  the  Committee. 


the  same  as  under  current  law.   One  significant  change,  however, 
is  an  amendment  that  would  (iermit  consideration  of  the  death 
penalty  for  an  attempted  assassination  of  the  President  which 
resulted  in  bodily  injury  to  the  President  or  which  otherwise 

came  dangerously  close  to  causing  the  death  of  the  President .2/ 
This  provision  was  incorporated  in  S.  1 1 U  by  the  Judiciary 
Committee  during  the  last  Congress.^/   In  three  other  respects, 
however,  the  bill  restricts  the  availability  of  the  death  penalty 
under  current  statutes.   First,  in  accordance  with  the  Supreme 
Court's  decision  in  Coker  v.  Georgia,  UBS  U.S.  58H  (1977),  the 
death  penalty  has  been  deleted  for  the  offense  of  rape.   Second, 
the  availability  of  the  death  penalty  for  peacetime  espionage 
has  been  limited  to  cases  involving  strategic  weapons  or  major 
elements  of  national  defense.   Third,  through  the  mechanism  of 
mandatory  threshold  aggravating  factors,  the  availability  of  the 
death  sentence  for  homicide  is  limited  to  instances  in  which  the 
defendant  either  intentionally  killed  the  victim  or  while  engaged 
in  the  commission  of  a  felony,  intentionally  participated  in  an 
act  which  resulted  in  the  death  of  an  innocent  victim  and  which 
the  defendant  knew  or  reasonably  should  have  known  would  result 
in  such  a  death. 

The  procedural  provisions  of  Title  X  may  be  summarized  as 
follows.   Under  these  provisions,  the  issue  of  the  propriety  of 
the  de^th  penalty  in  a  particular  case  is  the  subject  of  a 
separate  sentencing  hearing  held  after  the  entry  of  a  guilty  plea 
or  the  return  of  a  guilty  verdict.   The  death  penalty  may  be 
imposed  only  pursuant  to  such  a  hearing. 

5/  The  bill  would  also  authorize  the  death  penalty  for  murder  of 
a  foreign  official,  official  guest,  or  internationally  protected 
person  and  for  -homicide  committed  in  the  course  of  a  kidnapping 
--  offenses  which  do  not  now  provide  for  the  death  penalty 
because  they  were  enacted  or  amended  in  a  period   following 
Furman,  when  the  constitutional  requisites  of  a  death  penalty 
statute  were  unsettled. 

^/  A  memorandum  prepared  by  the  Department's  Office  of  Legal 

Counsel  on  the  constitutionality  of  such  a  provision  was  sub- 
mitted to  the  Judiciary  Committee  during  its  consideration  of 
S.  114  in  the  last  Congress'  and  is  reproduced  in  the  published 
hearings  of  the  Committee.   See,  Capital  Punishment,  Hearings 
before  the  Committee  on  the  Judiciary,  United  States  Senate  on 
S.  114,  97th  Cong.,  1st  Sess.  54-65  (April  10,  27  and  May  1,  1981) 

25-694  0-84-13 


The  first  procedural  requirement  is  that  the  government 
file,  a  reasonable  time  before  trial,  a  notice  that  it  will,  in 
the  event  of  conviction,  seek  the  death  penalty  and  a  description 
of  the  aggravating  factors  it  will  seek  to  prove  as  the  basis  for 
the  penalty.   Generally,  the  sentencing  hearing  is  to  be  held 
before  a  jury,  either  the  jury  that  determined  guilt,  or  where 
the  defendant  was  convicted  on  a  plea  of  guilty  or  pursuant  to 
a  trial  without  a  jury,  before  a  jury  specially  impaneled  for  the 
purpose  of  the  sentencing  hearing. 

The  focus  of  the  hearing  is  on  the  consideration  of  evidence 
of  aggravating  and  mitigating  factors  bearing  on  whether  the 
death  penalty  is  justified  under  the  circumstances  of  the  case. 
Title  X  sets  out  specific  mitigating  factors  which  may  be 
considered,  but,  consistent  with  the  Supreme  Court's  decision  in 
Lockett  v.  Ohio,  M38  U.S.  586  (1978),  the  jury  may  consider 
other,  unenumerated  mitigating  factors  as  well.   Two  sets  of 
specific  aggravating  factors  are  set  out;  one  set  is  applicable 
to  offenses  of  treason  and  espionage  and  the  other  applies  to 
homicides  and  the  attempted  assassination  offense.   With  respect 
to  aggravating  factors,  the  jury  may  also  consider  ones  not 
specifically  enumerated.   However,  a  finding  of  an  aggravating, 
factor  or  factors  other  than  those  specifically  listed  in  the 
bill  cannot  alone  support  imposition  of  the  death  penalty. 

At  the  sentencing  hearing,  the  government  bears  the  burden 
of  proving  any  aggravating  factors  beyond  a  reasonable  doubt. 
With  respect  to  mitigating  factors,  the  burden  of  proof  is  on  the 
defendant,  but  his  proof  need  meet  only  a  preponderance  standard. 
The  jury  is  required  to  return  special  findings  concerning  any 
aggravating  or  mitigating  factors  it  determines  to  exist,  and 
such  findings  must  be  supported  by  a  unanimous  vote.   If  no 
aggravating  factor  is  found  to  e^ist,  or  if,  in  the  case  of  a 
homicide  offense,  one  of  the  mandatory  threshold  aggravating 
factors  is  not  found,  the  court  must  sentence  the  defendant  to  a 
sentence  other  than  death. 

Should  the  jury  return  findings  of  aggravating  factors  (in 
the  case  of  homicide  offenses,  aggravating  factors  in  addition  to 


those  which  serve  as  a  threshold  limitation) ,  it  then  must 
proceed  to  determine  whether  these  factors  outweigh  any 
mitigating  factors  found,  or  if  there  were  no  mitigating  factors 
established,  whether  the  aggravating  factors  alone  are  sufficient 
to  justify  imposition  of  the  death  sentence.   Based  on  this 
consideration,  a  finding  of  whether  the  sentence  is  merited  must 
be  returned.   Where  the  determination  is  made  by  a  jury,  it  is 
to  be  by  unanimous  vote.   The  court  is  bound  by  the  unanimous 
decision  of  the  jury,  an  approach  upheld  by  the  Supreme  Court  in 
Gregg ,  supra  ■ 

Like  S.  1 1  **  as  approved  by  the  Judiciary  Committee  in  the 
last  Congress,  our  proposal  requires  an  instruction  to  the  jury 
before  whom  the  sentencing  hearing  is  held  that  it  not  consider 
the  race,  color,  national  origin,  creed,  or  sex  of  the  defendant 
in  determining  whether  the  sentence  of  death  is  justified.   Each 
juror*  is  to  certify  that  none  of  these  factors  entered  into  his 

Title  X  also  includes  a  provision,  not  incorporated  in 
S.  1  T4  but  which  appears  in  the  death  penalty  bill  now  before  the 
Committee,  S.  538,  which  permits,  in  capital  cases  where  it  is 
determined  that  the  death  penalty  is  not  justified,  the  imposi- 
tion of  a  life  sentence  without  possibility  of  parole. 

Also  addressed  in  Title  X  are  the  appropriate  procedures  and 
standards  for  appellate  review  of  a  death  sentence.   Appeal  of 
the  sentence  is  to  be  filed  in  the  same  manner  as  an  appeal  of  a 
conviction.   Consolidation  of  the  appeal  of  sentence  with  the 
appeal  of  conviction  is  specifically  sanctioned,  and  review  in 
capital  cases  is  to  be  given  priority  over  all  other  appeals.   In 
its  review,  the  appellate  court  must  consider  the  entire  record 
of  the  case,  the  .procedures  employed  in  the  sentencing  hearing, 
and  the  findings  as  to-  particiilar  aggravating  and  mitigating 
factors'.   Affirmance  of  the  death  sentence  is  required  if  the 
appellate  court  finds  that  the  sentence  of  death  was  not  imposed 
under  the  influence  of  passion,  prejudice,  or  any  other  arbitrary 
factors  and  that  the  information  presented  supports  the  findings 
with  respect  to  aggravating  and  mitigating  factors  upon  which  the 


sentence  was  based.   In  all  cases,  the  appellate  court  must 
remand  the  case  for  reconsideration  under  the  sentencing  provi- 
sions of  this  Title. 

The  provisions  of  Title  X  of  the  Administration's  bill 
combine,  in  our  .view,  to  establish  procedures  for  determining 
whether  the  sentence  of  death  is  justified  in  a  particular  case 
that  comport  fully  with  the  constitutional  teachings  of  the 
Supreme  Court  over  the  last  decade.   We  believe  that  in  the 
carefully  delineated  circumstances  to  which  Title  X  would  apply, 
the  opportunity  for  imposition  of  the  death  penalty  should  be 
restored.   A  criminal  justice  system  limited  to  lesser  sanctions 
is  lacking  in  adequate  deterrence  and  fails  to  meet  society's 
need  to  exact  a  just  and  proportionate  punishment  for  the  most 
grave  and  reprehensible  of  crimes. 

TITLE  XI  -  Labor "Racketeering  Amendments;  and 

TITLE  XII  -  Foreign  Currency  Transaction  Reporting 

As  these  Titles  of  the  bill  are  before  the  Committee  on 
Labor  and  Human  Resources  and  the  Committee  on  Banking,  Housing 
and  Urban  Affairs  respectively  a  statement  of  their  provisions 
is  not  included  herein. 

TITLE  XIII  -  Federal  Tort  Claims  Act  Amendments 

Title  XIII  would  make  the  United  States  the  exclusive  defen- 
dant for  all  torts  committed  by  federal  employees  within  the  scope 
employment  and  would,  for  the  first  time,  make  the  United . States 
liable  for  torts  arising  under  the  Constitution  of  the  United  States. 
The  title  would  provide  for  the  substitution  of  the  United  States 
for  defendant  employees  acting  within  the  scope  of  their  employment 
in  all  suits  alleging  common  law  or  constitutional  torts.   Title 
XIII  constitutes  a  significant,  equitable  and  badly  needed  reform 
of  federal  tort  law. 

The  current  state  of  federal  tort  law,  at  least  in  the  area  of 
the  constitutional  tort,  is  unsatisfactory  and  counterproductive 


from  the  perspective  of  every  participant.   Since  the  Supreme  Court 
announced  that  a  cause  of  action  was  available  against  individual 
federal  officers  in  1971,  federal  employees  have  been  the  subject 
of  an  increasing  number  of  suits  filed  personally  against  there  at 
every  level  of  government.  1^/   They  are  being  sued  for  doing  no 
more  than  carrying  out  the  duties  which  Congress  and  the  President 
have  ordered  them  to  perform.   In  a  society  where  virtually  every 
other  identifiable  group  is  protected  by  some  form  of  indemnity, 
insurance  or  rule  of  law,  this  exposure  to  personal  financial  ruin 
is  shocking  and  unconscionable.   In  reflecting  upon  this,  one  United 
States  District  Judge  has  beeen  moved  to  comment,  "The  effect  of 
this  development  upon  the  willingness  of  individuals  to  serve  their 
country  is  obvious."  2^/   If,  as  opponents  to  this  type  of  legisla- 
tion maintain,  deterrence  is  the  object  of  such  personal  suits,  that 
which  is  deterred  is  competent  government.   Effective  action  in  all 
is  chilled.   Resources  and  talent  are  diverted.   Careers  are  short- 
ened, recruitment  discouraged,  endless  nonproductive  litigation 
encouraged.   ^7 

Despite  the  ability  to  sue  federal  employees,  the  claimant, 
who  may  have  a  meritorious  claim  of  governmental  misconduct  in  vio- 
lation of  his  constitutional  rights,  in  practical  terms  has  virtu- 
ally has  no  remedy.   As  a  result  of  the  sound  doctrine  of  sovereign 
immunity,  the  United  States  cannot  be  sued  for  a  constitutional 
tort  because  it  has  not  consented  to  be  sued.  4/   As  a  result,  a 
plaintiff  frequently  faces  enormous  problems  in  attempting  to  even 
achieve  service  of  process  and  jurisdiction  over  individual  defen- 
dants and  may  only  look  to  the  individual  assets  of  those  persons 
should  he  obtain  a  judgment.   Our  records  indicate  that  of  the 
thousands  of  lawsuits  that  have  been  filed,  only  sixteen  have  re- 
sulted in  a  judgment  and,  of  those,  we  believe  that  only  six  have 
ultimately  been  paid.  b_l      Despite  the  fact  that  there  is  no  hope 
of  meaningful  monetary  recovery,  suits  continue  to  be  filed  at  an 
alarming  rate.   It  appears  that  they  are  often  prompted  by  reasons 
other  than  money  damages  such  as  personal  revenge  or  harassment  up- 
on a  public  official  or  as  a  means  of  collateral  attack  upon  an 
otherwise  legitimate  criminal  or  civil  enforcement  effort.   The 


proportion  of  recoveries  to  the  number  of  law  suits  filed  also  . 
demonstrates  that  federal  public  servants  do  not  violate  the  rights 
of  their  fellow  citizens  with  any  significant  frequency.   Thus  the 
current  threat  of  personal  lawsuits  under  which  they  must  now  operate 
is  unfair  and  unjustified.   The  severe  disruption  that  these  lawsuits 
cause  in  the  lives  of  federal  employees  cannot  be  overemphasized. 

The  American  citizen  and  taxpayer  is  not  being  well  served  by 
the  current  state  of  the  law.   The  system  for  redress  is  not  func- 
tioning and  conscientious  federal  employees  are  traumatized  by  the 
threat  or  reality  of  suit,  sometimes  into  inaction.   In  addition, 
the  present  scheme  engenders  protracted  and  expensive  litigation 
which  costs  the  taxpayers  more  money  than  it  should  and  contributes 
to  the  serious  and  increasing  problem  of  backlogs  and  delays  in  the 
courts.   Because  the  constitutional  tort  or  Bivens  case  concerns  the 
personal  finances  of  the  individual  defendants  it  can  only  be  settled 
in  the  rarest  of  cases.   In  addition,  multiple  defendants  are  sued 
in  almost  seventy-five  percent  of  the  cases.   As  a  result,  conflicts 
of  interest  sometimes  arise  and  the  Department  of  Justice  must  hire 
private  counsel  to  represent  each  of  the  groups  whose  factual  posi- 
tions collide.   It  is  anticipated  that  the  cost  of  hiring  private 
attorneys  in  those  cases  will  exceed  $1,300,000.00  for  fiscal  years 
1982,  1983  and  1984. 

Previous  testimony  before  Congress  by  several  United  States 
Attorneys  on  similar  proposals  also  indicated  that  a  great  deal 
of  extra  attorney  time  is  required  for  each  matter  in  order  to 
deal  with  the  personal  concerns  and  trauma  of  the  individual 
defendants.   Those  same  witnesses  also  elaborated  on  the  very 
difficult  ethical,  client  relations  and  resource  problems  caused 
by  the  current  state  of  the  law.  b_l      The  decisions  that  must  be 
made  by  both  clients  and  Department  of  Justice  attorneys  who  repre- 
sent them  in  these  cases  are  often  excrutiating.   They  must  be 
made  despite  the  fact  that,  most  of  the  lawsuits  are  wholly  without 
merit  and  will  be  eventually  disposed  of  on  motion.   Many  of  the 


cases  will  proceed  to  resolution  at  a  snail's  pace  at  large  mone- 
tary and  emotional  expense  to  all  parties.   Thus,  from  the  perspec- 
tive of  any  objective  observer,  the  current  scheme  of  civil  tort 
liability,  particularly  in  the'area  of  federal  constitutional  rights, 
is  a  failure. 

Were  Title  XIII  enacted,  federal  public  servants  would  no 
longer  be  subjected  to  the  specter  of  personal  financial  ruin  and 
inordinate  diversion  from  their  duties.   At  the  same  time,  their 
conduct  would  just  as  surely  be  amenable  to  the  scrutiny  of  the  , 
courts  through  an  action  brought  against  the  United  States  where 
the  reasonableness  of  the  actions  of  the  employee  could  be  chal- 
lenged.  The  citizen  would  gain  his  day  in  court  and  a  defendant, 
the  United  States,  amenable  in  every  case  to  personal  jurisdiction 
and  service  of  process,  a  defendant  who  would  be  in  a  position  to 
settle  cases  and  who  could  pay  any  judgments  awarded  to  the  plain- 
tiff.  Cases  would  proceed  much  more  expeditiously  to  trial  and 
resolution  with  the  cost  to  all  parties  drasti-cally  reduced. 

Opponents  to  legislation  of  this  nature  have  historically  re- 
lied upon  an  argument  best  summarized  as  one  of  accountability.   Al- 
though the  number  of  adherents  to  this  point  of  view  seems  to  be  de- 
clining, the  argument  is  that  the  threat  of  suit  deters  public  ser- 
vants from  doing  wrong.   The  short  answer  to  this  is  that  it  prevents 
the  public  servant  from  doing  anything,  including  what  is  right,. 
As  one  witness  before  Congress  has  stated,  "The  deterrence  we  have 
is  that  of  deterring  federal  employees  from  doing  their  duty."  l_l 
The  increasing  number  of  federal  officials  who  are  aware  of  the 
state  of  the  law  cannot  help  but  face  a  difficult  decision  with 
trepidation  because  of  what  should  be  an  extraneous  consideration 
for  his  or  her  personal  welfare.   The  law  enforcement  officer,  the 
welfare  case  worker,  the  probation  officer,  the  meat  inspector, 
the  contract  officer,  the  veterinarian,  the  revenue  agent,  the 
congressional  staffer,  the  personnel  manager,  the  job  foreman, 
and  even  the  forest  ranger  are  at  least  given  pause  and  perhaps 
prevented  from  carrying  out  the  very  mission  that  Congress  has  set 
for  them.   ^/ 

In  addition,  this  accountability  argument  places  too  much 
emphasis  upon  money  damages  as  the  only  meaningful  remedy  and  ignores 


the  array  of  other  sanctions  available  ranging  from  agency  punish- 
ment including  termination,  to  a  finding  that  the  actions  were  beyond 
the  scope  of  employment  and  therefore  not  defensible  by  the  United 
States,  to  injury  to  professional  reputation,  to  criminal  prosecu- 

Perhaps  the  best  rebuttal  to  the  deterrence  argument,  however, 
is  the  fact  that  its  acceptance  means  that  the  American  people  and 
government  continue  to  stumble  along  with  the  current  inadequate 
system.   In  other  words,  in  order  now  to  be  sure  of  having  the  nar- 
row, yet  very  unlikely,  legal  possibility  of  punishing  the  very  few 
through  civil  damages,  we  have  placed  in  jeopardy  and  confusion  the 
functioning  of  all  civil  servants  and  have  not  correspondingly  pro- 
vided the  plaintiff  with  a  remedy  that  he  or  she  can  expect  to  be 
realized.   The  current  "remedy"  of  deterrence  is  thus  grossly  dis- 
proportionate to  the  problem. 

Title  XIII  preserves  the  defense  of  qualified  immunity  on  be- 
half of  the  United  States  with  respect  to  constitutional  torts. 
It  is  important  to  point  out  that,  while  labelled  as  an  immunity, 
it  is  really  an  affirmative  defense  that  simply  gives  the  United 
States  the  opportunity  to  defend  the  conduct  of  its  employees  as 
having  been  reasonable.   The  Supreme  Court,  in  the  case  of  Harlow 
Fitzgerald,  102  S.Ct.  2727  (1982),  recently  defined  the  test  of 
qualified  immunity  to  be  one  solely  of  objective  reasonableness. 
Under  traditional  tort  law  analysis,  it  is  the  failure  to  act  as  a 
reasonable  man  in  violating  a  duty  owed  to  an  injured  person  which 
triggers  liability.   In  the  private  sector,  an  employer  can  assert 
the  reasonableness  of  the  conduct  of  an  employee  when  the  employer 
is  sued  for  a  tort  committed  by  the  employee.   Retention  of  the 
qualified  immunity  defense  would  simply  echo  that  legal  principle. 
Elimination  of  the  qualified  immunity  defense  would  be  a  declara- 
tion by  the  Congress  that  considerations  of  reasonableness  are  ir- 
relevant to  the  conduct  of  government  agents.   Taxpayers  would  pay 
damages  in  cases  when  courts  determined  with  hindsight  that  techni- 
cal violations  had  occurred  even  though  the  conduct  of  the  employee 
was  properly  motivated  and  eminently  reasonable.   Agencies  and 
agents  would  hesitate  to  act  for  fear  of  damage  claims  which  would 


reflect  adversely  upon  theni  because  they  would  be  prevented  from 
defending  their  conduct  as  reasonable  in  court.   In  other  words, 
the  government  would  be  placed  in  a  situation  of  strict  liability 
were  the  defense  to  be  eliminated,  a  disadvantage  to  the  United 
States  clearly  contrary  to  existing  provisions  of  the  Federal  Tort 
Claims  Act  and  to  reason  and  sound  poli'cy.  9/   Additionally,  elimin- 
ation of  the  defense  would  seriously  detract  from  the  ability  of 
the  courts  to  fully  ventilate  and  get  to  the  truth  of  alleged  mis- 
conduct.  That  is  because  the  issue  of  the  reasonableness  of  the 
conduct  would  have  been  declared  to  be  irrelevant  to  liability;  and 
thus  so  would  many  of  the  pertinent  facts  be  rendered  irrelevant. 
Accordingly,  the  Department  strongly  urges  that  the  defense  continue 
to  be  retained. 

Enactment  of  Title  XIII  would,  for  the  first  time,  permit  plain- 
tiffs to  have  recourse  to  a  meaningful  defendant  because  the  United 
States  would  be  waiving  sovereign  immunity  for  constitutional  torts. 
This  is  a  major  reform  and  benefit  that  cannot  be  overstressed.   At 
the  same  time,  the  cloud  of  personal,  financial  liability  would  be 
removed  from  federal  officials  who  could  get  on  with  the  business 
of  proper  government.   Perhaps  most  importantly,  the  courts  would 
be  enabled  to  deal  with  the  serious  questions  that  arise  in  constitu- 
tional cases  of  this  nature  in  an  expeditious  and  meaninful  way  and 
award  genuine  relief  to  deserving  plaintiffs. 


1/    Bivens  v.  Six  Unknown  Named  Agents  of  the  Federal  Bureau  of 
Narcotics.  403  U.S.  388  (1971). 

2/    Halperin  v.  Kissinger,  606  F.2d  1192,  121-4  (D.C.  Cir.  1979), 
Judge  Gesell  concurring. 

3/   -See,  Hearings  Before  the  Subcommittee  on  Administrative  Law 
and  Governmental  Relations  of  the  Committee  on  the  Judiciary,  House 
of  Representatives,  Ninety  Seventh  Congress,  on  H.R.  24,  October  13, 
1981;  May  19  and  20.  1982. 

See  also.  Hearings  before  the  Subcommittee  on  Agency  Admin- 
istration, Committee  on  the  Judiciary,  United  States  Senate,  Ninety 
Seventh  Congress,  on  S.  1775,  November  13  and  16,  1981;  March  31, 

4/    See,  Duarte  v.  U.S.,  532  F.2d  850  (2d  Cir.  1976);  Norton  v.  U.S. , 
581  F.2d  390  (4th  Cir.  1978);  Ames  v,  U.S..  600  F.2d  183  (8th  Cir. 
1979);  Jaffee  v.  U.S..  592  F.2TTr2  (3r^Cir.  1979);  Baker  v.  F  &  F 
Investment  Co. ,  4F5~F.2d  829  (7th  Cir.  1973). 


5/    Askew  V.  Bloemker.  S-CIV-73-79  (S.D.  111.,  Sept.  29,  1978).  DEA 
agent  was  held  personally  liable  for  violating  the  Fourth  Amendment 
rights  of  three  plaintiffs  by  conducting  a  search  without  probable 
cause  or  a  warrant;  the  jury  awarded  damages  of  $22,000;  plaintiffs 
agreed  not  to  enforce  the  judgment  against  the  uninsured  federal 
agent  but  rather  to  proceed  against  defendant  state  employees  who 
were  insured. 

Seguin  v.  Hightower,  No.  C76-182-V  (W.D.  Wash.,  Oct.  24,  1978). 
Customs  agent  helo  personally  liable  to  the  owner  of  an  impounded 
car  used  in  a  smuggling  scheme  because  the  agent  delayed  four  and 
one  half  months  in  initiating  forfeiture  action;  the  court  awarded 
the  plaintiff  $7,300  for  rental  value  of  the  car  plus  consequential 
damages . 

Jihad  V.  Carlson,  CA  No.  5-71-805  (E.D.  Mich.,  Oct.  18,  1976). 
Prison  guard  held  personally  liable  for  $992  to  inmate  for  viola- 
ting his  right  to  religious  freedom  in  placing  him  in  segregation 
for  refusing  to  shave  his  beard;  the  judgment  was  reversed  on  appeal. 

Weiss  v.  Lehman,  CA  No.  375-36  (CD.  Idaho,  July  14,  1978). 
Forest  service  ranger  held  personally  liable  for  $1,000  for  viola- 
ting plaintiff's  Fifth  Amendment  rights  by  destroying  property  owned 
by  plaintiff  which  had  been  apparently  abandoned;  the  Ninth  Circuit 
Court  of  Appeals  affirmed  the  judgment.   A  Petition  for  Writ  of 
Certiori  was  filed  in  the  Supreme  Court.   The  Court  granted  the 
petition  and  remanded  the.  case  for  reconsideration  (No.  80-2159, 
Oct.  5,  1981)  in  light  or  Parratt  v.  Taylor,  49  USLW  4509,  Hay  18, 
1981.   The  Ninth  Circuit  Court  of  Appeals  then  reversed  and  entered 
judgment  for  the  defendant. 

Halperin  v.  Kissinger,  424  F.Supp.  838  (D.  D.C.  1976)  and  434 
F.Supp.  1193  (D.  D.C.  1977).   Former  President  Richard  Nixon,  H.R. 
Haldeman  and  John  Mitchell  held  personally  liable  in  damages  for 
violating  plaintiff's  Fourth  Amendment  rights  in  authorizing  wire- 

'   Dellums  v.  Powell,  566  F.2d  167  (D.C.  Cir.  1977).   Chiefs  of 
U.S.  Capitol  and  D.C.  Police  held  personally  liable  for  arrests  at 
Capitol  Building  during  anti-war  demonstration  in  class  action  with 
1,200  plaintiffs;  a  total  judgment  of  approximately  2  1/2  million 
dollars  plus  interest  was  entered  against  all  defendants  and  subse- 
quently paid  through  Congressional  action. 

Tatum  v.  MorCon,  562  F.2d  1279  (D.C.  Cir.  1977).  Inspector  of 
D.C.  Police  held  personally  liable  for  $500  for  disrupting  29  demon- 
strators at  the  White  House. 

Schoneberger  v.  Hinchcliffe,  CA.  No.  76-234  (D.  Vermont,  Sept. 
22,  1980) .   FBI  agent  personally  held  liable  for  $150  for  retaining 
a  firearm  (for  too  long  a  period)  seized  during  a  raid  for  illegal 

Saxner  v.  Benson,  CA.  No.  75-47-C  (S.C  Indiana  1981).   Three 
members  of  a  Federal  Corrections  Institution  Disciplinary  Committee 
held  personally  liable  for  $3,000  apiece  for  violating  an  inmate's 
procedural  due  process  rights. 

Hobson  V.  Jerry  Wilson,  et  al.,  D.  D.C.  Civil  Action  No.  76- 
1326.   A  total  of  $711,000  was  awarded  seven  former  antiwar  acti- 
vists against  fourteen  present  or  retired  officers  of  the  FBI  or 
the  Washington,  D.C.  police  department.   The  suit  charged  violation 
of  constitutional  rights  during  undercover  surveillance  activities 
in  the  1960s  and  7-Os.   The  verdict  was  complex,  awarding  different 
amounts  for  and  against  different  parties. 

Epps.  V.  United  States,  et  al. ,  D.  Md.  CA  No.  0-78-2373.   A 
judgment  of  $200,000  was  awarded  against  a  Field  Branch  Chief  of 
the  IRS  for  allegedly  vandalizing  the  property  of  the  plaintiff 
while  her  business  was  in  the  possession  of  the  IRS.   The  judgment 
was  subsequently  vacated  on  post  trial  motions. 


Nees  V.  Bishop,  et  al. ,  D.  Col.  524  F.Supp.  I3l0  (1981).  $1,000 
was  awarded  Co  a  plaintiff  who  alleged  that  the  losing  defendant  had 
deprived  him  of  his  right  to  counsel  by  allegedly  advising  state 
custodial  authorities  that  he  need  not  see  a  state  public  defender 
since  he  had  been  incarcerated  on  a  federal  charge. 

Clymer,  Jr.  v.  Grzegorek,  et  al.  E.D.  Va. ,  CA  No.  80-1009-12 
(19827"!   Damages  of  $1,000  were  awarded  against  a  former  federal 
correctional  institution  warden  in  favor  of  a  prisoner  who  claimed 
overcrowding  and  understaf f ing  led  to  violence  and  an  assault  upon 

Whitney  v.  Skinner,  E.D.  Wash.  C-78-139  (1982).  A  judgment  of 

$9,000  was  awarded  to  a  Federal  employee  who  alleged  that  her 

rights  were  violated  by  her  supervisor's  action  that  "intimidated 
her  into  falling". 

Rodgers  v.  Hyatt,  83-1  U.S.T.C.  ^  9139  (10th  Cir.  1983).   The 
Tenth  Circuit  Court  of  Appeals  affirmed  a  jury  verdict  of  $1,000 
against  an  IRS  official  for  disclosure  of  tax  return  information 
notwithstanding  the  fact  that  the  information  had  been  fully  dis- 
closed in  a  prior  court  proceeding. 

Doran  v.  Houle,  D.  Mont.  79-14-GF  (1982).   A  group  of  veteri- 
narians were  awarded  $272,000  against  a  Federal  veterinary  inspec- 
tor on  the  allegation  that  he  wrongfully  denied  them  licenses  neces- 
sary for  innoculation  of  sheep.   The  jury  trial  lasted  ten  days  and 
was  the  subject  of  extensive  media  attention.   The  adverse  decision 
has  had  a  devastating  impact  on  the  individual  federal  defendant 
and  upon  the  Veterinary  Service.   It  is  presently  on  appeal  before 
the  Ninth  Circuit. 

6/    See,  testimony  of  Stanley  S.  Harris  and  Royce  C.  Lamberth 
before  this  Subcommittee  on  May  19,  982  and  the  testimony  of  Jerome 
F.  O'Neill,  John  S.  Martin,  Jr.,  and  William  B.  Cummings,  on  November 
13,  1981  before  the  Subcommittee  on  Agency  Administration  of  the 
Committee  on  the  Judiciary,  United  States  Senate. 

7^/   Testimony  of  Jerome  F.  O'Neill,  supra. 

8^/    In  an  article  entitled  "Suing  Our  Servants"  appearing  in  the 
1980  edition  of  The  Supreme  Court  Law  Review  published  by  the  Univer- 
sity of  Chicago,  (page  281)  Peter  H.  Schuck,  Associate  Professor  of 
Law,  Yale  Law  School,  makes  a  convincing  case  for  the  proposition 
that  the  most  frequent  targets  of  such  suits  are  the  everyday  public 
servants  who  operate  at  the  level  which  deals  directly  with  the  pub- 
lic.  It  is  important  to  understand  that  our  support  for  proposals 
of  this  nature  is  not  primarily  based  upon  a  desire  for  relief  of 
high  level  officials. 

9/    See,  letter  of  April  11,  1983  from  Deputy  Attorney  General 
Edward  C.  Schmults  to  the  Honorable  Charles  E.  Grassley  concerning 
the  qualified  immunity  defense. 


Title  XIV  -  Miscellaneous  Violent  Crime  Amendments 

Title  XIV  in  divided  into  subparts  A  -  M  and  is  designed  to 
strengthen  a  number  of  provision  dealing  with  violent  crime.   It 
also  creates  a  limited  number  of  new  offense  involving  violent 
crime  to  fill  gaps  in  existing  law.  ~ 

Part  A  -  Murd-er-for-Hire  and  Violent  Crimes  in  Aid  of  Racketeering 

Section  1401  adds  a  new  section  16  to  title  18  to  define  the 
term  "crime  of  violence."   The  term  is  used  in  several  new  or 
revised  sections  as  a  result  of  other  provision  in  this  title 
such  as  section  1U02  proscribing  violent  crimes  committed  for 
money  or  other  consideration,  and  section  1403,  prohibiting 
solicitation  to  commit  a  crime  of  violence.  _The  definition  of 
the  term  "crime  of  violence"  is  taken  from  the  Senate  version  of 
the  Criminal  Code  Reform  Bill  (S.  1630,  97th  Cong.)  and  predeces- 
sor bills.   The  term  means  an  offense  that  has  an  element  the 
use,  attempted  use,  or  threatened  use  of  force,  or  any  other 
offense  that  is  a  felony  and  that  involves  a  substantial  risk 
that  physical  force  may  be  used  against  the  person  or  property  of 

Section  1402  proscribes  murder  and  other  violent  crimes  for 
hire.   It  is  similar  to  a  provision  contained  in  S.  2572  as 
passed  by  the  Senate  in  the  97th  Congress  and  would  add  two  new 
sections,  1952A  and  1952B,  to  title  18  of  the  United  States  Code. 
Although  designed  primarily  for  use  in  cases  of  murder-f or-hire 
carried  out  as  the  orders  of  organized  crime  figures,  section 
1952A  would  also  reach  other  such  calculated  murders.   Section 
1952A  follows  the  format  of  18  U.S.C.  1952,  interstate  travel  in 
aid  of  racketeering. 

Section  1952A  would  reach  travel  in  interstate  or  foreign 
commerce  or  -the  use  of  the  mails  or  a  facility  in  interstate  or 
foreign  commerce  (such  as  a  telephone  if  used  for  an  interstate 
call)  with  the  intent  that  a  murder  be  committed  in  violation  of 
state  or  Federal  law.   The  murder  must  be  planned. or  carried  our 
as  consideration  for  the  receipt  of  something  of  pecuniary  value 
or  a  promise  or  agreement  to  pay  something  of  pecuniary  value. 


Both  the  person  who  ordered  the  murder  and  the  "hit-man"  would  be 
covered.   If  the  victim  is  killed  the  punishment  can  extend  to 
life  imprisonment  and  a  $50,000  fine  but  lesser  punishments  are 
provided  if  the  planned  murder  did  not  take  place  or  the  attempt 
resulted  only  in  an  injury  to  the  victim. 

Section  1952B  is  designed  to  deal  with  contract  murders  and 
other  violent  crimes  by  organized  crime  figures  which  do  not 
involved  interstate  travel  or  other  interstate  facilities  or  are 
committed  not  for  money  but  rather  as  a  part  of  membership  in  a 
criminal  organization.   This  section  proscribes  murder,  kidnap- 
ing, maiming,  serious  assaults  and  threats  of  violence  committed 
as  consideration  for  payment  or  a  promise  to  pay  anything  of 
pecuniary  value  from  an  "enterprise"  engaged  in  "racketeering 
activities."   "Racketeering  activity"  is  defined  as  set  forth  in 
the  RICO  statute,  section  1951,  and  "enterprise"  is  defined  as  an 
organization,  group  or  entity  whose  activities  affect  interstate 
commerce.   The  proposed  section  also  covers  murders,  kidnapings, 
maimings,  serious  assaults  and  threats  of  violence  committed  as  a 
means  of  gaining  entrance  into  or  improving  one's  status  in  an 
enterprise  engaged  in  racketeering  activity.   Attempts  and 
conspiracy  to  commit  these  offenses  are  also  covered.   The  person 
who  ordered  the  offenses  set  forth  in  the  section  could  also  be 
punished  as  an  aider  and  abettor  under  IB  U.S.C.  2. 

Part  B  -  Solicitation  to  Commit  a  Crime  of  Violence 

Section  1H03  adds  a  new  section  373  to  title  18  of  the 
United  States  Code,  to  proscribe  the  offense  of  solicitation  to 
commit  a  crime  of  violence.   This  section  is  of  principal  utility 
in  a  situation  where  a  person  makes  a  serious  effort  to  induce 
another  to  engage  in  activity  constituting  a  crime  of  violence 
but  is  unsuccessful  in  doing  so.   The  solicitor  is  clearly  a 
dangerous  person  and  his  act  merits  criminal  sanctions.   Yet  at 
present  there  is  no  federal  law  that  prohibits  solicitation 
generally,  although  a  solicitation  offense  was  included  in 
S.  .2572  as  passed  by  the  Senate  in  the  97th  congress  and  in 
S.  1630  (97th  Cong.),  the  proposed  federal  criminal  code  reform 
bill.   See  S.  Rept.  No.  97-307,  pages  179-186. 


Only  solicitation  to  commit  a  crime  of  violence  is  here 
covered.   "Crime  of  violence"  is  defined,  in  a  new  section  16  to 
be  added  to  title  18,  as  a  crime  that  has  as  an  element  the  use 
or  attempted  use  of  physical  force  against  another's  person  or 
property,  or  any  felony  that  involves  a  substantial  risk  that 
physical  force  will  be  so  used.   Thus,  although  the  new  offense 
rests  primarily  on  words  of  instigation  to  crime,  what  is 
involved  is  legitimately  prescribable  criminal  activity,  not 
advocacy  of  ideas  which  is  protected  by  the  First  Amendment  right 
of  free  speech. 

The  punishment  provided  for  the  new  offense  is  up  to  one 
half  the  term  of  imprisonment  and  one  half  the  fine  authorized 
for  the  punishment  of  the  crime  solicited,  and  up  to  twenty  years 
imprisonment  for  solicitation  of  an  offense  punishable  by 
death. 1/ 

Part  C  -  Felony  Murder 

Section  1404  expands  the  definition  of  felony  murder  in 
18  U.S.C.  1111.   It  is  identical  to  a  provision  in  S.  2572  as 
passed  by  the  Senate  in  the  last  Congress.   Presently,  premedi- 
tated murder  is  murder  in  the  first  degree.   Under  common  law,  a 
murder  committed  during  a  common  law  felony  was  held  to  be 
committed  with  a  sufficient  degree  of  malice  to  warrant  punish- 
ment as  first  degree  murder,  but  section  1111  only  applies  the 
felony  murder  doctrine  to  killings  committed  during  an  actual  or 
attempted  arson,  rape,  burglary,  or  robbery.   The  amendment  would 
expand  the  list  of  underlying  offenses  by  adding  escape,  murder 
—  for  example  if  the  defendant  acts  in  the  heat  of  passion  in  an 
attempt  to  kill  A  but  instead  kills  B  —  kidnaping,  treason, 
espionage,  and  sabotage  since  these  crimes  also  pose  as  great,  if 
not, more,  danger  to  human  life,  as  the  four  presently  listed. 

^J      We  suggest  that  the  legislative  history  indicate  that 
"punishable  by  death"  refers  to  those  offenses,  such  as 
murder  (18  U.S.C.  1111),  in  which  Congress  has  included  the 
death  penalty  in  the  statute,  irrespective  of  whether  the 
penalty  is  presently  enforceable.   Alternatively,  the 
Committee  may  wish  to  amend  this  provision  to  apply  the 
twenty-year  penalty  to  solicitation  of  a  crime  that  covers  a 
sentence  of  up  to  life  imprisonment. 


Part  D  -  Mandatory  Penalty  for  Firearm  Use  During  Violent  Crimea 
Section  TJOS  provides  for  a  mandatory  sentence  of  imprison- 
ment for  a  determinate  period  of  time  for  using  or  carrying  a 
firearm  in  a  federal  crime  of  violence.   This  section  is  similar 
to  one  included  in  S.  2572   2/  ag  passed  by  the  Senate  in  the 
97th  Congress  and  carries  out  one  of  the  recommendations  of  the 
Attorney  General's  Task  Force  on  Violent  Crime.   This  section 
amends  present  section  924(c)  of  title  18  which  attempts  to 
provide  for  a  mandatory  minimum  sentence,  but  is  drafted  in  such 
a  way  that  a  person  convicted  of  a  violation  may  still  be  given  a 
suspended  sentence  or  placed  on  probation  for  his  first  viola- 
tion.  Moreover,  present  section  924(0)  is  ambiguous  as  to 
whether  the  sentence  for  a  first  violation  may  be  made  to  run 
concurrently  with  that  for  the  underlying  offense.   In  addition, 
even  if  a  person  is  sentenced  to  imprisonment  under  section 
924(c),  the  normal  parole  eligibility  rules -apply.   Section  1405 
•eliminates  the  possibility  of  a  suspended  or  concurrent  sentence, 
probation,  and  parole.   A  person  convicted  of  using  or  carrying  a 
firearm  in  relation  to  a  crime  of  violence  would  be  sentenced  to 
imprisonment  for  five  years  for  his  first  conviction  and  ten 
years  for  a  subsequent  conviction. 

Part  E  -  Armor  Piercing  Bullets 
Section  1405  is  a  response  to  the  problem  of  criminal  use  of 
bullets  that  will  pierce  the  type  of  armor  -  resistant  clothing 
now  being  employed  by  many  police  departments.   The  recent 
publicity  given  to  the  so  called  "cop  killer"  bullets  has  posed  a 
new  threat  to  the  police  officers  and  public  figures  who  depend 
on  "body  armor  for  protection  against  surprise  handgun  attacks. 
The  section  adds  a  new  section  929  to  title  18  to  provide  for  a 
mandatory  term  of  imprisonment  for  using  armor-piercing  handgun 
ammunition  during  and  in  relation  to  a  federal  crime  of  violence. 

2/  While  Part  D  is  similar  to  a  provision  in  S.  2572,  Part  D 
-  has  been  drafted  to  ensure  that  it  applies  to  offenses  such 
as  bank  robbery  and  assault  on  a  federal  officer  which 
already  provide  for  an  enhanced,  but  not  mandatory   punish- 
ment for  the  use  of  a  firearm.   The  way  in  which  the  provi- 
sion in  S   2572  was  phrased  would  probably  have  precluded  its 
use  in  such  a'case  in  light  of  recent  Supreme  Court  decisions 
construing  section  924(c).   See  Simpson  v.  United  States,  435 
U.S.  6  (1978),  and  Buslc  v.  United  States,  446  U.S.  390 


It  is  identical  to  a  provision  in  S.  2572  as  passed  in  the  last 
Congress.   A  mandatory  sentence  of  imprisonment  for  five  years  is 
provided  for  using  or  carrying  a  handgun  loaded  with  ammunition 
which  would,  if  fired  form  the  handgun,  pierce  the  type  of  body 
armor  commonly  worn  by  police  officers.   A  person  convicted  of  a 
violation  of  this  section  could  not  be  given  a  suspended  or 
concurrent  sentence  or  be  placed  on  probation  and  he  would  not  be 
eligible  for  parole. 

Since  the  new  section  would  only  he  effective  if  the  bullet 
is  used  or  carried  during  a  violent  crime,  it  does  not  threaten 
any  legitimate  sporting  or  recreational  use  of  any  type  of 
ammunition  of  firearm. 

It  should- be  noted  that  the  mandatory  punishment  for  the  use 
of  the  armor-piercing  ammunition  under  section  929  is  in  addition 
to  the  mandatory  punishment  for  the  use  or  carrying  of  the 
firearm  under  the  amended  section  924.   Thus  a  person  who  robbed 
a  bank  with  a  handgun  loaded  with  armor-piercing  bullets  would, 
if  charged  with  and  convicted  of  a  violation  of  18  U.S.C.  924  and 
929,  be  sentenced  to  a  mandatory  term  of  imprisonment  of  ten 
years  —  five  years  for  carrying  the  gun  and  five  for  the  bullets 
—  in  addition  to  any  punishment  for  the  underlying  bank  robbery 
offense.   This  cumulative  mandatory  punishment  for  firearms  and 
bullets  is  intended  to  serve  a  clear  notice  on  criminals  that 
they  face  substantial  jail  time  for  their  use  and  to  persuade 
them  to  leave  firearms  and  particularly  dangerous  bullets  at  home 
when  they  are  choosing  weapons. 

Part  F  -  Kidnaping  of  Federal  Officials 

Section  1407  proscribes  the  kidnaping  of  a  federal  officer 
in  the  performance  of  his  duties.   It  is  identical  to  a  provision 
in  S.  2572  as  passed  by  the  Senate  in  the  97th  Congress  and 
amends  the  present  kidnaping  statute,  18  U.S.C.  1201,  to  cover 
the  abduction  of  a  federal  officer  listed  in  18  U.S.C.  1114  if 
the  crime  is  committed  while  the  victim  is  engaged  in  his 
official  duties  or  on  account  of  his  official  duties.   Presently 
only  murder  and  assault  on  these  persons  are  federal  offenses  and 
kidnaping  would  not  be  covered  unless  the  victim  happened  to  be 


transported  in  interstate  ooramerce  or  the  offense  was  committed 
in  an  area  of  special  federal  jurisdiction.   The  amendment  also 
complements  the  amendments  contained  in  the  next  section 
of  the  bill  which  proscribes  the  murder,  assault,  or  kidnaping  of 
family  meir.bers  of  federal  law  enforcement  officers  and  high  level 
federal  officials  if  the  offense  is  committed  to  impede  or 
retaliate  against  the  federal  officer  or  employee  because  of  his 
official  duties. 

Part  G  -  Crimes  Against  Family  Members  of  Federal  Officials 

Section  1^408  adds  new  section  115  to  title  18  to  make  it  a 
federal  offense  to  commit  or  threaten  to  commit  murder,  kidnaping 
or  assault  upon  a  close  relative  of  a  federal  judge,  federal  law 
enforcement  officer,  or  certain  federal  officials  if  the  purpose 
of  the  attack  is  to  impede,  interfere  with,  intimidate,  or 
retaliate  against  the  federal  employee  on  account  of  his  official 
duties.   Since  it  would  be  an  element  of  the  new  offense  that  the 
act  was  done  because  of  the  official  duties  of  the  employee,  the 
section  represents  no  real  expansion  of  federal  jurisdiction. 
The  scope  of  the  offense  is  linked  to  acts  done  with  a  purpose  to 
obstruct  or  retaliate  against  federal  officials  because  of  their 
job  -  related  responsibilities  --  acts  for  which  a  State  or  local 
jurisdiction  might  lack  the  necessary  deg^ree  of  interest  to 
vindicate  the  crime  and  for  which  federal  jurisdiction  is  thus 
appropriate . 

The  subjects  of  the  new  offense  are  family  members  — 
spouse,  parent,  brother,  sister,  and  other  relatives  of  the 
official  who  actually  live  in  his  household  —  of  those  govern- 
ment employees  and  officers  most  likely  to  be  subjected  to 
attacks  by  terrorists  or  other  criminals  in  an  attempt  to 
interfere  with  vital  functions  of  the  government  and  the  adminis- 
tration of  justice,  namely  law  enforcement  officers,  the 
President,  Vice  President,  Members  of  Congress,  Cabinet  officers, 
federal  judges  including  Supreme  Court  Justices,  and  person 
protected  by  18  U.S.C.  1 1 1 U .   In  part,  this  section  complements 
the  provisions  of  P.L.  97-285,  enacted  in  1982  to  protect  Supreme 
Court  Justices  and  cabinet  officers  themselves  by  making  attacks 
on  their  persons  federal  crimes. 

25-694  O  -  84  -  14 


Part  H  -  Amendment  of  the  Major  Crimes  Act 
Section  1M09  amends  the  Major  Crimes  Act,  18  U.S.C.  1153, 
which  provides  for  federal  jurisdiction  over  the  serious  inter- 
personal crimes  listed  therein  if  committed  by  an  Indian  in  the 
Indian  country.   Presently  14  felony  offenses  are  covered.  The 
section  would  be  amended  to  add  the  offenses  of  involuntary 
sodomy  and  maiming  and  to  cover  larceny  only  if  the  property 
involved  is  worth  in  excess  of  $100.00.   A  crime  committed  by  an 
Indian  against  the  person  or  property  of  another  Indian  may  only 
be  prosecuted  in  federal  court  if  it  is  listed  in  section  1153. 
Other  such  interpersonal  crimes  must  be  prosecuted  in  tribal 
court  where  the  maximum  punishment  extends  to  six  months' 
imprisonment  and  a  $500.00  fine.   Such,  punishment  is  not  suffi- 
cient for  the  offenses  of  maiming,  traditionally  regarded  as 
among  the  most  serious  of  all  crimes,  or  for  involuntary  sodomy, 
which  frequently  involves  a  minor  child  as  the  victim.   Con- 
versely, tribal  courts  are  fully  capable  of  handling  petty 
larceny  of  amounts  less  than   $100.00  and  there  is  no  need  to 
continue  federal  court  jurisdiction  over  such  an  offense. 
Part  I  -  Destruction  of  Motor  Vehicles 
Section  1410  deals  with  the  destruction  of  motor  vehicles. 
It  is  identical  to  a  provision  contained  in  S.  2572.   It  amends 
the  definition  of  "motor  vehicle"  in  18  U.S.C.  31.  the  section 
that  defines  the  term  as  it  is  applied  in  18  U.S.C.  33  which 
proscribes  the  destruction  of  motor  vehicles.   Presently  "motor 
vehicle"  means  any  device  used  for  commercial  purposes  on  the 
highways  for  the  transportation  of  passengers  or  passengers  and 
property.   It  does  not  include  vehicles  used  to  transport  only 
car^o.   Another  statute  which  does  cover  the  actual  or  attempted 
i'    truction  of  cargo  moving  in  interstate  commerce,  15  U.S.C. 
1281,  is  restricted  to  the  destruction  of  the  cargo  itself. 
Thus,  there  is  no  federal  coverage  of  a  sniper  who  shoots  at  a 
cargo  truck  since  the  truck  carries  only  cargo  which  usually  is 
not  destroyed.   The  amendment  would  close  this  gap  by  expanding 
the  definition  of  "motor  vehicle"  to  include  a  device  used  for 
carrying  "passengers  and  property,  or  property  or  cargo." 


Part  J  -  Destruction  of  Energy  Facilities 
Section  1111  is  also  similar  to  a  provision  in  S.  2572. 
It  adds  a  new  section  1365  to  title  18  to  make  it  a  federal  crime 
to  knowingly  and  willfully  damage  the  property  of  an  energy 
producing  facility  in  an  amount  that  exceeds  $100,000  or  to  cause 
any  amount  of  damage  which  results  in  a  significant  interruption 
or  impairment  6f  the  functions  of  the  facility.   The  penalty  for 
this  offense  may  extend  to  ten  years'  imprisonment  and  a  $50,000 
fine.   A  punishment  of  up  to  five  years'  imprisonment  and  a 
$25,000  fine  is  provided  for  the  lesser  included  offense  of 
knowingly  and  willfully  damaging  the  property  of  an  energy 
facility  in  an  amount  that  exceeds  $5,000.   The  term  "energy 
facility"  is  defined  to  include  all  types  of  electrical 
generating  plants,  and  other  facilities  involved  in  the 
distribution,  storage  or  transmission  of  electricity  or  other 
types  of  energy.   It  does  not,  however,  include  a  facility 
subject  to  the  jurisdiction  of  the  Nuclear  Regulatory  Commission 
since  the  damaging  of  such  facilities  is  already  proscribed  by 
12  U.S.C.  228^. 

Part  K  -  Assaults  on  Federal  Officers 
Section  1412  makes  three  amendments  to  section  1114  of  title 
18  which  proscribes  the  killing  of  designated  federal  officers 
and  employees  while  engaged  in,  or  on  account  of  the  performance 
of  their  official  duties. 

First,  section  1114  is  amended  to  cover  attempted  murders. 
Second,  its  coverage  is  expanded  to  include  certain  officers  in 
the  Intelligence  Community.   Third,  authority  is  given  to  the 
Attorney  General  to  designate  by  regulation  other  classes  of 
federal  officers  and  employees  for  coverage  under  section  1114,' 
an  approach  similar  to  that  in  several  of  the  criminal  code 
revision  bills.   This  would  provide  a  workable  mechanism  for 
extending  federal  protection  to  miscellaneous  classes  of  persons 
as  changing  needs  dictate.   18  U.S.C.  1114  is  also  used  to  define 
the  scope  of  coverage  of  18  U.S.C.  Ill  which  sets  out  the  offense 
of  assault  against  persons  "designated  in  section  1114."   Thus, 
by  virtue  of  section  Ill's  cross  reference  to  section -11 14  the 


second  and  third  of  the  above  amendments  also  operate  to  modify 

and  scope  of  the  assault  statute. 

Part  L  -  Escape  from  Custody  Imposed  by  a  Civil  Commitment  Order 

Section  1413  is  designed  to  make  it  an  offense  to  escape 
from  confinement  ordered  pursuant  to  a  court  under  the  provisions 
of  28  U.S.C.  1826.   That  statute  empowers  a  judge  to  order 
confined  any  person  who,  without  just  cause,  refuses  to  testify 
before  a  federal  court  or  grand  jury.   Such  confinement  may 
extend  for  the  life  of  the  court  proceeding  or  the  term  of  the 
grand  jury.   Under  present  law  persons  who  escape  or  attempt  to 
escape  from  confinement  as  a  result  of  such  an  order  cannot  be 
prosecuted.   Moreover,  such  persons  are  on  occasions  already 
serving  federal  prison  terms  when  they  refuse  to  testify.   If  a 
federal  prisoner  is  ordered  civilly . committed  the  criminal 
sentence  is  suspended  for  the  duration  of  the  civil  contempt 
sentence  to  ensure  that  the  confinement  is  in  addition  to  and 
extends  the  time  of  the  confinement  for  the  criminal  sentence. 
See  28  C.F.R.  522.11(d).   This  in  effect  gives  the  prisoner  a 
"free  shot"  at  making  an  escape  while  confined  pursuant  to 
28  U.S.C.  1826.   Since  such  confinement  is  often  in  a  local  jail 
which  may  not  be  as  secure  as  a  federal  prison,  the  incentive  to 
attempt  an  escape  can  be  great.   Recently  an  unsuccessful  attempt 
was  made  to  prosecute  under  18  U.S.C.  751  two  persons  in  Arizona 
confined  in  a  local  correctional  center  pursuant  to  28  U.S.C. 
1825,  but  the  court  ruled  that  the  section  was  inapplicable. 
Section  1413  of  the  bill  would  eliminate  this  loophole  by  adding 
a  new  subsection  (c)  to  28  U.S.C.  1826  specifically  proscribing 
the  escape,  attempted  escape,  or  rescue  of  a  person  confined 
pursuant  to  that  section.   Moreover,  the  new  subsection  would 
cover  the  escape,  attempted  escape,  or  rescue  of  certain  danger- 
ously insane  persons  who  have  been  committed  under  the  provisions 
of  the  new  18  U.S.C.  4243  (added  in  Title  V  of  the  bill  dealing 
with  the  insanity  defense)  following  an  acquittal  by  reason  of 
insanity.   Punishment  of  up  to  three  years'  imprisonment  and  a 
$10,000  fine  is  authorized. 


Part  M  -  Extradition  Reform 
This   part  would  create  a  new.  Chapter  210  of  Title  18  for 
international  extradition  laws.   Presently,  both  rendition,  which 
deals  with  the  return  of  fugitives  form  one  state  of  the  Untied 
States  to  another,  and  international  extradition  of  fugitives  are 
dealt  with  in  Chapter  209.   Under  our  proposal.  Chapter  209  is 
left  substantively  unchanged  as  it  pertains  to  rendition  and 
international  extradition  is  dealt  with  separately  in  the  new 
Chapter  210. 

The  changes  made  in  the  extradition  laws  are  designed  to 
update  those  laws  which  have  proven  inadequate  in  modern  times. 
Many  of  the  statutes  on  extradition  have  been  in  force  for  over 
100  years,  some  having  had  no  significant  alteration  since  1882 
while  others  have  not  been  significantly  amended  since  ISMS.   The 
marked  increase  in  the  number  of  extradition  requests  received 
and  made  by  the  United  States  in  recent  years  has  revealed 
problems  with  the  present  antiquated  laws.   Moreover,  the 
requests  have  generated  a  number  of  published  court  decisions  on 
constitutional  and  legal  issues  involved  in  international 
extradition.   While  these  judicial  interpretations  fill  important 
gaps  in  statutory  law,  we  believe  they  should  be  codified  in  new 
extradition  legislation.   Finally,  the  United  States  has  con-  . 
eluded  new  extradition  treaties  with  many  foreign  countries  in 
the  past  few  years.   The  language  of  the  present  law  is  not 
adequate  to  implement  some  of  their  provisions,  and  it  therefore 
impedes  fulfillment  by  the  United  States  of  its  international 

Accordingly,  the  new  Chapter  210,  which  is  virtually 
identical  to  S.  1940  as  passed  by  the  Senate  in  the  last  Congress 
on  August  19,  1982,  is  intended  to  make  the  following  improve- 
ments in  international  extradition: 

( 1 )   It  permits  the  United  States  to  secure  a  warrant  for 
the  arrest  of  a  foreign  fugitive  even  though  the  fugitive's 
whereabouts  in  the  United  States  is  unknown  or  even  if  he  is  not 
in  the  United  States.   This  warrant  can  then  be  entered  into  the 
FBI's  NCIC  system  so  that  if  the  fugitive  attempts  to  enter  the 
United  States  or  is  apprehended  in  the  United  States  for  other 


reasons,  he  can  be  identified  and  arrested  immediately  for 
extradition  to  the  requesting  country. 

(2)  It  provides  a  statutory   procedure  for  waiver  of 
extradition.   This  feature  protects  a  fugitive's  rights  while 
facilitating  his  removal  to  the  requesting  country  in  instances 
in  which  he  is  willing  to  voluntarily  go  to  the  requesting 
country  without  a  formal  extradition  hearing. 

(3)  It  permits  both  a  fugitive  and  the  United  States  on 
behalf  of  the  requesting  country  to  directly  appeal  adverse 
decisions  by  an  extradition  court.   Under  present  law  a  fugitive 
can  only  attack  an  adverse  decision  through  habeas  corpus.   The 
only  option  available  to  the  United  States  acting  on  behalf  of  a 
requesting  country  is  to  refile  the  extradition  complaint  with 
another  magistrate . 3/ 

(4)  It  clarifies  the  applicable  standards  for  bail  at  all 
stages  of  an  extradition  case  by  adopting  standards  largely 
derived  from  Federal  court  cases. 

(5)  It  establishes  clear  statutory  procedures  and  standards 
applicable  to  all  critical  phases  of  the  handling  and  litigation 
of  a  foreign   extradition  request. 

(6)  It  sets  forth  specific  procedures  for  determination  of 
applicability  of  the  political  offense  exception  to  extradition 
and  removes  from  that  exception  violent  acts  committed  by 
terrorists  and  others  and  those  offenses  involving  international 
drug  trafficking. 

(7)  It  limits  access  to  United  States  courts  in  connection 
with  foreign  extradition  requests  to  cases  initiated  by  the 
Attorney  General. 

(8)  It  permits  use  of  a  summons  instead  of  a  warrant  of 
arrest  in  appropriate  cases. 

(9)  It  codifies  the  rights  of  a  fugitive  to  legal  repre- 
sentation and  to  a  speedy  determination  of  an  extradition 
request . 

(10)  It  simplifies  and  rationalizes  the  procedures  for 
authenticating  documents  for  use  in  extradition  proceedings. 

3/  Matter  of  Mackin,  668  F.2d  122  (2  Cir.  1981) 


(11)   It  ifacilitates  temporary  extradition  of  fugitives  to 
the  United  States. 

TITLE  XV  —  Serious  Non-Violent  Offenses 

Title  XV  deals  with  serious,  but  non-violent  crimes. 
PART  A  -  Product  Tampering 

Part  A  concerns  product  tampering,  which  is  also  the  subject 
of  S.  216.   Since  we  previously  testified  on  S.  216  before  the 
full  Committee,  which  has  since  favorably  reported  that  bill,  we 
will  not  discuss  the  product  tampering  provision  of  S.  829- 

PART  B  -  Child  Pornography 
Another  area  addressed  by  Title  XV  is  child  pornography.  The 
bill  amends  the  federal  child  pornography  laws  to  facilitate  the 
prosecution  of  purveyors  of  material  depicting  children  engaging 
in  sexually  explicit  conduct.   The  bill's  dhild  pornography 
provision  is  based  in  part  on  New  York  v.  Ferber ,  102  S.  Ct .  3346 
(1982),  in  which  the  Supreme  Court  held  that  material  showing 
children  engaging  in  sexually  explicit  conduct  could  be  banned 
even  though  the  material  might  not  meet  the  legal  definition  of 
obscenity  as  set  out  in  Miller  v.  California,  413  U.S.  15  (1973). 
Ferber  recognized  that  where  children  were  involved  the  State  had 
a  much  greater  interest  in  regulating  pornography.   Accordingly, 
the  bill  amends  18  U.S.C.  2252  to  cover  the  transportation, 
shipment,  receipt,  sale,  or  distribution  of  material  visually 
depicting  minors  engaging  in  sexually  explicit  conduct  whether  or 
not  the  conduct  is  legally  obscene,  as  the  law  presently 
requires.   In  addition,  the  section  eliminates  the  present 
requirement  that  the  material  must  be  sold  or  produced  for 
pecuniary  profit.   Experience  has  shown  that  a  certain  amount  of 
this  type  of  material  is  produced  and  traded  by  "collectors" 
rather  than  sold,  but  the  harm  to  the  children  involved  is,  of 
course,  the  same  regardless  of  the  motive. 


PART  C  -  Warning  the  Subject  of  a  Search 

Title  XV  provides  for  a  new  type  of  obstruction  of  justice 
offense.   Under  section  2232  of  title  18,  it  is  a  misdemeanor  to 
impair  an  authorized  search  by  a  law  enforcement  officer,  such  as 
a  search  in  the  execution  of  a  warrant,  by  destroying  or  removing 
the  property  that  is  the  object  of  the  search.   It  is  not, 
however,  an  offense  to  warn  a  person  that  his  property  is  about 
to  be  the  target  of  a  search  so  that  he  can  himself  remove  or 
destroy  it.   Title  XV  fills  this  gap  by  making  it  unlawful  to 
give  notice,  or  to  attempt  to  give  notice  of  a  search  in  order  to 
prevent  the  authorized  seizing  of  any  property. 

PART  D  -  Program  Fraud  and  Bribery 

Another  area  covered  by  Title  XV  is  fraud  or  bribery 
concerning  a  program  of  a  private  organization  or  of  a  State  or 
local  government  that  receives  federal  financial  assistance. 
Presently,  18  U.S.C.  665  makes  theft  or  embezzlement  by  an 
officer  or  employee  of  an  agency  receiving  assistance  under  the 
■Job  Training  Partnership  Act  a  federal  offense.  However,  there 
is  no  statute  of  general  applicability  in  this  area,  and  thefts 
from  other  organizations  receiving  federal  financial  assistance 
can  be  prosecuted  under  18  U.S.C.  641  only  if  it  can  be  shown 
that  the  money  stolen  is  property  of  the  United  States.   However, 
in  many  cases  title  has  passed  to  the  State  or  local  government 
before  the  property  is  stolen,  or  the  funds  are  so  commingled  by 
the  State  or  municipality  that  the  federal  character  of  the  funds 
cannot  be  shown.   The  program  fraud  and  bribery  provision  of 
Title  XV  is  designed  to  remedy  this  situation  and  to  protect 
federal  assistance  programs  by  making  it  unlawful  to  steal, 
embezzle,  or  fraudulently  obtain  property  valued  at  $5,000  or 
more  from  an  organization  that  receives  federal  benefits  or  to 
give  or  accept  a  bribe  in  connection  with  such  an  organization  if 
the  matter  involves  $5,000  or  more. 

PART  E  -  Counterfeiting  of  State  and  Corporate  Securities 
and  Forging  of  Endorsements  or  Signatures  on 
United  States  Securities 

T.itle  XV  makes  it  a  federal  crime  to  counterfeit  or  forge 
State  or  corporate  securities.   Present  law  is  inadequate  to 


combat  widespread  fraud  schemes  involving  the  use  of  counterfeit 
corporate  and  State  securities.   The  use  of  these  securities  as 
collateral  for  loans  and  for  other  illegal  purposes  has  a  serious 
detrimental  effect  on  interstate  commerce.   Moreover,  these 
crimes  commonly  reach  beyond  State  borders,  and  thus  local 
officials  are  generally  unable  to  cope  with  thera. 

Title  XV  also  prohibits  the  forging  of  an  endorsement  or 
signature  on  a  Treasury  check,  bond,  or  other  security  of  the 
United  States  and  the  passing  of  such  an  obligation  with  intent 
to  defraud.   The  bill  also  makes  it  a  felony  to  exchange  or 
receive,  with  knowledge  of  its  false  character,  an  obligaton  of 
the  United  States  that  has  been  stolen  or  bears  a  forged  endorse- 
ment . 

At  present,  violations  involving  forgery  of  endorsement 
or  fraudulent  negotiation  of  a  Treasury  check  or  bond  or  other 
security  of  the  United  States  are  prosecuted  under  title  18, 
section  U95.  However,  because  section  U95   was  not  drafted  to  deal 
with  Treasury  checks  or  bonds  or  other  obligations  of  the  United 
States,  many  of  the  variations  of  offenses  involved  with  the 
forgery  of  obligations  are  not  included  under  section  495.  " 
Similarly,  other  provisions  of  federal  law  are  inadequate  to 
prevent  the  types  of  violations  covered  by  this  part  of  Title  XV. 

The  proposal  would  make  it  possible  to  prosecute  both 
forgeries  of  endorsements  and  related  crimes  involving  oblij- 
gations  of  the  United  States  under  one  section.   It  would  greatly 
assist  the  Secret  Service,  which  has  the  primary  jurisdiction  to 
investigate  crimes  involving  obligations  and  securities  of  the 
United  States  and  which  would  have  jurisdiction  with  regard  to 
the  new  offense. 

PART  F  -  Receipt  of  Stolen  Bank  Property 

Title  XV  includes  a  provision  which  deals  with  the  receipt 
of  stolen  bank  property.   18  U.S.C.  2113,  proscribing  bank 
robbery  and  bank  burglary,  prohibits  the  receipt  of  property  with 
the  knowledge  that  it  was  stolen  from  a  bank.   Cases  under  this 
provision  have  held  that  the  government  must  show  that  the 
defendant  had  knowledge  that  the  property  he  received  was  stolen 


from  a  bank,  not  merely  that  he  knew  that  it  was  stolen.   The 
offender's  culpability,  however,  is  not  altered  by  his  knowledge 
or  lack  thereof  as  to  the  source  of  the  stolen  property,  provided 
he  knew  that  it  was  stolen.   Therefore,  this  requirement  that  the 
defendant  knew  the  property  was  stolen  from  a  bank  is  unreason- 
able, and  the  bill  revises  18  U.S-.C.  2113(c)  to  eliminate  it. 
The  government  must  still  prove,  however,  that  the  defendant  knew 
the  property  he  was  receiving  was  stolen. 

PART  G  -  Bank  Bribery 

Title  XV  revises  and  brings  up  to  date  the  statute  dealing 
with  bribery  of  bank  officers.   Sections  215  and  216  of  title  18 
presently  cover  the  receipt  of  commissions  or  gifts  by  bank 
employees  for  procuring  loans,  but  they  are  inadequate,  unduly 
complex,  and  obsolete  in  many  respects.   For  example,  these 
sections  do  not  cover  bribery  of  employees  of  federally  insured 
credit  unions,  of  member  banks  of  the  Federal  Home  Loan  Bank 
System,  such  as  savings -and  loan  associations,  or  of  bank  holding 
companies.   The  bill  combines  existing  sections  215  and  216  to 
bring  up  to  date  the  list  of  covered  institutions  and  to  make 
other  needed  improvements,  including  the  prohibition  of  indirect 
as  well  as  direct  payments  and  an  increase  in  applicable - 

PART  H  -  Bank  Fraud 

Title  XV  adds  a  new  section  to  title  18  to  provide  for  an 
offense  of  defrauding  financial  institutions  which  are  federally 
chartered  or  insured.   Present  law  covers  the  offenses  of 
embezzlement,  robbery,  larceny ,.  burglary,  and  false  statements 
directed  at  these  institutions.   There  is  no  similar  statute 
generally  proscribing  bank  fraud,  and  federal  prosecution  of  a 
fraud  directed  at  a  bank  may  only  be  undertaken  if  the  government 
can  prove  the  elements  of  some  other  offense,  such  as  mail  or 
wire  fraud,  or  making  a  false  statement  to  a  bank.   The  utility 
of  these  statutes  has  been  greatly  diminished  by  Supreme  Court 
decisions  precluding  their  applicability  in  certain  cases  and  by 
the  increasing  use  of  private  courier  services  for  collection 
purposes  in  lieu  of  the  mails.   The  bank  fraud  provision  in 


Title  XV  is  designed  to  fill  the  gaps  in  present  law  and  to 
provide  a  straightforward  way  of  preventing  bank  frauds. 

PART  I  -  Possession  of  Contraband  in  Prison 

Under  existing  law,  it  is  an  offense  to  take  contraband  into 
or  out  of  a  federal  penal  institution.   This  new  provision  would 
fill  a  gap  in  current  law  by  providing  sanctions  for  the  making, 
possession  or  receipt  of  an  object  if  the  object  may  be  used  as 
a  means  of  facilitating  an  escape  and  is  possessed  contrary  to 
a  rule  or  regulation  established  by  prison  officials.   More  serious 
penalties  are  provided  for  possession  of  narcotics  or  a  deadly  weapon. 
This  provision  will  strengthen  the  ability  of  federal  prison  offi- 
cials to  maitain  order  in  our  correctional  institutions. 

-  TITLE  XVI  -  Miscellaneous  Procedural  Amenglments 

PART  A  -  Juvenile  Prosecutions 

Sections  1601-1503  make  several  amendments  to  chapter  403  of 
title  18  concerning  juvenile  delinquency.   In  general  they  are 
designed  to  make  it  easier  to  prosecute  certain  hard-core 
juvenile  offenders  as  adults.   Similar  provisions  were  contained 
in  S.  2572.   Initially,  section  1601  amends  section  5031  to  lower 
from  eighteen  to  seventeen  the  age  at  which  an  act  that  would  be 
considered  a  crime  if  committed  by  an  adult  is  instead  considered 
to  be  only  an  act  of  juvenile  delinquency. 

Section  1602  contains  an  amendment  to  current  law  that  was 
recommended  by  the  Attorney  General's  Task  Force  on  Violent 
Crime.   The  Task'Force  report  indicates,  at  page  83,  that  it 
believes  that  the  federal  government  "should  have  the  opportunity 
to  prosecute  those  individuals  be  they  adults  or  juveniles,  who 
violate  federal  law."   Accordingly,  section  1602  amends  18  U.S.C. 
5032  to  provide  that  the  provision  relating  to  deferral  of 
juvenile  prosecutions  to  State  authority  does  not  apply  to  an 
offense  that  is  a  felony  if  there  is  such  a  substantial  federal 
interest  in  the  case  or  in  the  offense  that- the  exercise  of 


federal  jurisdiction  is  warranted.   Under  present  law,  a  juvenile 
may  not  be  federally  prosecuted  unless  the  Attorney  General 
certifies  that  there  is  no  state  jurisdiction  over  the  offense  or 
that  state  programs  and  services  for  juveniles  are  not  adequate. 

Section  1602  also  amends  section  5032  to  permit  adult 
prosecution  of  anyone  over  fourteen  who  is  charged  with  a  crime 
of  violence  or  an  offense  described  in  section  841,  952(a),  955, 
or  959  of  title  21,  United  States  Code,  relating  to  drug  traf- 
ficking.  Under  current  law,  a  person  may  be  charged  as  an  adult 
only  if  he  is  over  16  and  is  charged  with  an  offense  punishable 
by  ten  years  or  more  in  prison,  life  imprisonment,  or  death. 

Section  1603  amends  section  5038  of  title  18  to  permit  the 
fingerprinting  and  photographing  of  a  juvenile  found  guilty  of  an 
act  of  juvenile  delinquency  that,  if  committed  by  an  adult,  would 
be  a  felony  crime  of  violence  or  an  offense  relating  to  drug 
trafficking  under  section  841,  952(a),  955,  or  959  of  title  21. 
Under  current  law,  the  name  and  picture  of  a  juvenile  cannot  be 
released  in  connection  with  any  juvenile  delinquency  proceeding. 
The  result  is  that  frequently  an  adult  with  an  extensive  record 
will  be  sentenced  as  a  first  offender  because  the  court  is  not 
familiar  with  his  juvenile  criminal  history.   This  amendment  of 
section  5038  is  consistent  with  recommendation  58  of  the  Attorney 
General's  Task  Force  on  Violent  Crime. 

PART  B  -  Wiretap  Amendments 
Section  1604  amends  section  2518(7)  of  title  18,  which  is 
part  of  Title  III  of  the  Omnibus  Crime  Control  and  Safe  Streets 
Act  of  1968,  to  provide  for  emergency  interceptions  of  wire  or 
oral  communications  in  life  endangering  situations.  A  similar 
provision  was  included  in  S.  2572,  and  in  S.  1640  as  passed  by 
the  Senate  on  March  25,  1982. 

Generally,  Title  III  requires  prior  court  authorization  of 
an  interception  of  communications.   However,  18  U.S.C.  2518(7) 
permits  an  emergency  interception  without  such  prior  authoriza- 
tion under  two  types  of  emergency  situations  when  there  is  not 
time  to  obtain  a  court  order:   those  involving  either  "conspira- 
torial activities  threatening  the  national  security"  or 
"conspiratorial  activities  characteristic  of  organized-  crime ." 


The  absence  of  similar  specific  authority  to  Intercept  communica- 
tions in  emergency  situations  in  which  there  Is  an  imminent 
threat  to  human  life  has  been  of  grave  concern  of  law  enforcement 
authorities.   For  example,  terrorists  or  other  felons,  while 
holding  hostages,  may  use  an  available  telephone  to  arrange  with 
associates  strategy  to  force  action  on  their  demands  or  a  plan  of 
escape.   Similarly,  there  may  be  situations  in  which  plans  for  an 
imminent  murder  are  learned,  but  the  location  or  identity  of  the 
victim  is  unknown  or  law  enforcement  authorities  are  otherwise 
unable  to  take  measures  to  assure  his  safety.   In  such  situa- 
tions, the  interception  of  communications  may  be  necessary  to 
protect  the  lives  of  the  hostages  or  victims,  yet  time  for 
obtaining  a  court  order  may  not  be  available. 

Section  1604  would  amend  18  U.S.C.  2518(7)  to  provide  the 
needed  authority  to  make  an  emergency  interception  in  this  type 
of  imminently  life-threatening  situation.   It  also  amends  section 
2516  of  title  18  to  add  the  offenses  of  wire  fraud,  child 
pornography,  and  violations  of  the  currency  transaction  reporting 
statute  (31  U.S.C.  5322)  to  the  list  of  offenses  for  which  a 
court  ordered  interception  of  a  wire  or  oral  communication  is 
authorized,  and  to  ensure  that  such  an  interception  may  be  used 
in  the  investigation  of  the  new  witness  tampering  statutes,  18 
U.S.C.  1512  and  1513,  as  added  by  P.L.  97-291. 

PART  C  -  Venue  for  Threat  Offenses 

Part  C  is  designed  to  remove  an  unnecessarily  restrictive 
choice  of  venue  presently  placed  on  the  government  in  cases 
involving  mailing  or  telephoning  threatening  communications. 
Under  18  U.S.C.  3239,  venue  with  respect  to  the  offense  of 
threatening  or  mailing  threats  in  violation  of  18  U.S.C.  875, 
875,  or  877  lies  only  in  the  district  where  the  threat  was  first 
placed  in  motion  such  as  the  district  in  which  the  letter  was 
mailed  or  in  which  the  call  was  made.   This  statute  is  an 
exception  to  the  general  rule  contained  in  18  U.S.C.  3237  that  an 
offense  involving  the  use  of  the  mails  or  transportation  in 
interstate  or  foreign  commerce  is  a  continuing  offense  and  may  be 
prosecuted  in  any  district  form,  through,  or  into  which  the 
commerce  or  mail  matter  moves. 


It  is  difficult  to  discern  any  reason  to  treat  venue  in 
threat  cases  differently  from  other  continuing  offenses,  as  a 
matter  of  right.   For  example,  there  appears  to  be  no  reason  to 
mandate  that  a  defendant  who  mailed  a  threat  be  tried  where  he 
mailed  it  but  allow  the  government  to  prosecute  a  defendant  who 
mailed  an  explosive  in  the  district  of  mailing,  the  district  of 
receipt,  or  any  district  through  which  it  passed.   Hence,  section 
3239  is  repealed. 

In  addition,  section  3237  is  reworded  to  make  it  clear  that 
the  importation  of  an  object  or  person  into  the  United  States  is 
a  continuing  offense  and  may  be  prosecuted  in  any  district  from, 
through,  or  into  which  the  person  or  object  moves.   Cases  such  as 
United  States  v.  Lember,  319  F.  Supp.  249  (E.D.  Va.,  1970)  have 
limited  venue  in  importation  cases  to  the  district  of  entry 
rather  than  of  final  destination.   This  has  created  difficulties 
as  the  witnesses  are  usually  located  in  the  place  of  destination. 
PART  D  -  Injunctions  Against  Fraud 

Part  D  is  designed  to  allow  the  Attorney  General  in  appro- 
priate cases  to  enjoin  a  violation  of  chapter  63  dealing  with 
wire  fraud  and  mail  fraud,  and,  as  amended  by  section  1508  of 
this  bill,  with  bank  fraud.   Current  law,  except  for  the  area  of 
securities  fraud  schemes,  contains  no  injunction  authority,  thus 
enabling  the  perpetrators  of  fraudulent  enterprises  to  continue 
to  victimize  the  public  even  after  the  filing  of  criminal  charges 
and  the  obtaining  of  a  conviction.   The  section  adds  a  new 
section  1345  to  title  18  to  allow  the  Attorney  General  to  put  a 
speedy  end  to  a  fraud  scheme  by  seeking  an  injunction  in  federal 
district  court  whenever  he  determines  he  has  received  sufficient 
evidence  to  initiate  such  an  action.   A  similar  provision  was 
contained  in  S.  1630  in  the  last  Congress.   Once  the  Attorney 
General  commences  the  case  for  injunction  relief,  the  Federal 
Rules  of  Civil  Procedure  apply  except  that  if  an  indictment  is 
returned  the  more  restrictive  discovery  rules  of  the  Federal 
Rules  of  criminal  Procedure  would  become  applicable. 


PART  E  -  Government  Appeal  of  New  Trial  Orders 
Section  1607  deals  with  the  rights  of  the  government  to 
appeal  a  decision  of  the  district  court  to  grant  a  new  trial  to  a 
convicted  defendant.   It  is  similar  to  a  provision  in  S.  I630. 
Presently  18  U.S.C.  3731  allows  an  appeal  by  the  government  from 
a  decision,  judgment,  or  order  of  a  district  court  dismissing  an 
indictment  or  information  except  where  prohibited  by  the  Double 
Jeopardy  clause.   There  is  no  provision  for  a  government  appeal 
of  an  order  granting  a  new  trial  after  a  verdict  or  judgment, 
although  such  an  appeal  would  not  violate  the  Double  Jeopardy 
clause.   If  the  government  prevails  on  appeal  the  original 
verdict  or  judgment  can  simply  be  reinstated.   This  is  a  far 
better  way  to  correct  an  erroneous  decision  than  a  costly, 
time-consuming  new  trial,  the  only  alternative  under  present  law. 
Accordingly,  Part  E  amends  section  3731  to  allow  a  government, 
appeal  after  any  decision,  judgment  or  order  in  a  district  coUrt 
granting  a  new  trial. 

PART  F  -  Witness  Security  Program  Improvements 

This  part  of  the  bill  makes  several  improvements  in  the 

Witness  Protection  Program  as  presently  set  out  in  Title  V  of  the 

Organized  Crime  Control  Act  of  1970,  P.L.  91-'^52.   It  adds  a  new 

chapter  224  (sections  3521-3523)  to  title  18. 

Initially,  the  new  section  3521  expands  the  authority  of  th 
Attorney  General  to  provide  witness  protection  in  cases  other 
than  those  involving  organized  crime  and  broadens  the  definition 
of  witness  to  include  potential  witnesses,  victims,  and  their 
families.   Moreover,  the  new  section  also  gives  the  Attorney 
General  wider  discretion  to  order  the  kinds  of  protective 
measures  which  he  deems  necessary  than  are  authorized  under 
present  law.   The  Attorney  General  could  provide  official 
documents  to  enable  a  protected  person  to  establish  a  new 
identity.   He  could  provide  housing  and  transportation  of 
household  goods  to  a  new  location  if  a  protected  person  must  be 
relocated.   The  Attorney  General  could  also  provide  tax-free 
subsistence  payments  in  a  sum  established  pursuant  to  regulations 
for  such  time  as  he  deems  necessary.   The  Attorney  General  would 
also  be  authorized  to  assist  the  relocated  person  in  obtaining 



employment.      Finally,    the   Attorney   General   would    be   authorized, 
in   his   discretion,    to   refuse   to   disclose   to   anyone   the    identity, 
location,    or    other   matter   concerning    a    protected    person.       In 
ruling   on   a    possible   disclosure,    he   would   be   authorized   to 
consider   the  danger   that   would   result    to   a    relocated   or    protected 
person,    the   detriment   a   disclosure   would    cause   to   the   general 
effectiveness   of   the    program,    and,    conversely,    the    possible 
benefit    to   the   public    that   might    result    from   a   disclosure. 

One    problem  with    the   present   Witness   Protection    Program   that 
has   arisen   occasionally   concerns   a   citizen   who   has   a   civil    cause 
of  action   against   a    protected   person   but   who   cannot    litigate 
because   he   is   unable   to   learn   of   the   person's   new   identity   or 
location.      Subsection    3521(c)    is   designed    to   deal   with   this   issue 
by   seeking   a   balance   between   the   usual    policy   of   nondisclosure 
and    the   right   of   an   innocent   person    to    litigate   for   civil 
damages.      The   Attorney   General    is   authorized   to   accept   service   or 
process   on   a   person   and    is   required    to   make   a   reasonable   effort 
to   serve    the   process   on   him   at   his    last   known   address.      If   a 
judgment   is   entered,    the   Attorney   General   must   determine    if   the 
relocated   person   has   made    reasonable   efforts   to   comply   with   its 
provisions.      If   the   Attorney   General   concludes   that   such    reason- 
able  efforts   at   compliance   have    not   been   made,    he    is   granted 
discretion   to   reveal    to   the   plaintiff   the   defendant's   location, 
after   giving   appropriate   weight    to   the   danger   to   the    protected 
person    that   will   be   caused. 

Title  XVI,   Part  G,  would  clarify  the  change  of  venue  provisions 
contained  in  18  U.S.C.    3237(b)  which  apply  to  certain  tax  offenses.     Section 
3237(b)    is  commonly  referred  to  as  the  "hare  venue  option"  because  it 
affords  a  defendant  the  right  in  certain  tax  prosecutions  and  under 
specified  circumstances  to  transfer  the  venue  of  the  prosecution  to  the 
district  of  his  residence. 

Section  3237(b)   of  Title  18  is  an  exception  to  18  U.S.C.    3237(a),  vhldh 
permits,  inter  alia,  prosecution  of  any  offense  involving  use  of  the  mails 
in  any  district  frran,   through,  or  into  which  the  mail  matter  involved  moves. 
Under  18  U.S.C.    3237(b) ,  a  defendant  has  the  cption  to  require  prosecution 
in  the  district  where  he  resided  at  the  time  of  the  alleged  offense  "v*ere 
an  offense  is  described  in  section  7203  of  the  Internal  Revenue  Code  of 


1954,  or  where  an  offense  involves  use  of  the  nails  and  is  an  offense 
described  in  section  7201  or  7206(1) ,  (2) ,  or  (5)  of  such  Code  *  *  *  and 
prosecution  is  begun  in  a  judicial  district  other  than  the  judicial  district 
in  which  the  defendant  resides  *  *  *."  a  notion  to  treinsfer  prosecution 
must  be  filed  within  twenty  days  after  arraignment  of  the  defendant  on  an 
indictiTEnt  or  information.  The  correct  interpretation  of  Section  3237(b)  is 
of  critical  irtportance  in  prosecutions  directed  at  abusive  tax  shelter  and 
tax  protestor  scheines,  as  well  as  other  multi-defendant  tax  prosecutions. 

Itie  position  of  the  Justice  Departnent  is  that  the  here  venue  option  is 
available  only  in  tax  prosecutions  brought  in  a  district  other  than  the 
defendant's  place  of  residence  as  a  consequence  or  result  of  the  use  of  the 
mails  by  the  defendant.  Tlrte   Court  of  Appeals  for  the  Second  Circuit 
sustained  the  Government's  interpretation  in  In  re  United  States  (Clemente) , 
608  F.  2d  76  (1979),  cert,  denied,  446  U.S.  908  (1980),  holding  that  Section 
3237  (b)  is  applicable  at  most  only  in  situations  i»tiere  use  of  the  mails  is 
the  iDasis  on  which  the  prosecution  seel^s  to  establish  venue  in  a  district 
vtere  the  defendant  does  not  reside.  Thus,  the  court  rejected  the 
contention  that  a  defendant  is  entitled  to  change  venue  under  Section 
3237  (b)  in  a  case  in  which  the  prosecution  see)cs  to  establish  venue  on  the 
basis  of  criminal  conduct  wholly  apart  from  the  use  of  the  mails.  In 
reaching  its  conclusion,  the  court  pointed  out  that  the  mischief  at  which 
Section  3237  (b)  was  directed  was  the  prosecution  of  a  taxpayer  a  great 
distance  fron  his  residence  sinply  because  his  tax  return  had  been  mailed  to 
a  far  distant  office  of  the  IRS.  The  court  opined  that  the  interpretation 
of  the  statute  suggested  by  the  United  States  and  adopted  by  the  court 
"fully  meets  the  prcfclera  that  concerned  the  Congress."  608  F.  2d  at  79. 

In  United  States  v.  United  States  District  Court  (Solonon) ,  693  F.  2d 
68  (1982) ,  the  Court  of  i^jpeals  for  the  Ninth  Circuit  adopted  a  contrary 
interpretation  of  Section  3237 (b) ,  finding  that  \4iere  the  mails  are  used  as 
part  of  the  offense — such  as  to  file  tax  returns — defendants  who  did  not 
reside  in  the  district  of  prosecution  were  entitled  to  have  the  substantive 
tax  counts  transferred  to  their  district  of  residence  even  though  venue  was 
not  predicated  on  use  of  the  mails.  The  indictment  had  been  returned  in  the 
Southern  District  of  California  (San  Diego)  against  five  defendants  and  the 
court  acknowledged  that  virtually  all  of  the  alleged  criminal  activity  had 
occurred  in  San  Diego.  TVro  defendants  who  resided  in  the  San  Francisco  Bay 

25-694  0-84-15 


area  filed  motions  for  transfer  of  venue  under  Section  3237  (b)  and  the  grant 
of  those  notions  by  the  district  court  was  sustained  by  the  Ninth  Circuit. 

The  Ninth  Circuit  felt  that  its  reading  of  the  statute  was  conpelled  by 
the  plain  language  of  Section  3237(b) ,  holding  that  (693  F.  2d  at  70): 
"I'Jhatever  may  have  been  the  original  intent  of  the  bill's  sponsors,  the 
language  adopted  to  accomplish  those  goals  is  much  broader  than  that  which 
would  have  covered  the  situations  actually  considered  by  Congress."  Thus, 
the  venue  was  transferred  inasmuch  as  the  defendants  had  mailed  the  tax 
returns  at  issue  to  the  IRS,  despite  the  fact  that  the  transfer  would 
require  a  trial  "in  a  remote  district  with  no  connection  to  the  crime  exc^t 
the  fortuity  of  the  defendants'  residence  there."  693  F.  2d  at  70. 

Litigation  on  this  issue  is  pending  before  the  Court  of  J^peals  for  the 
Fourth  Circuit  in  United  States  v.  District  Court  (Nardone) ,  No.  83-1149, 
a  bizarre  case  that  might  aptly  be  described  as  "a  case  without  a  home."  In 
Nardone  three  individual  defendants  were  indicted  in  the  Southern  District 
of  \'fest  Virginia  for  various  offenses  revolving  aroxond  ten  fraudulent  tax 
shelters  involving  coal  properties  located  in  VIest  Virginia.  The  defendant 
Nardone  resided  in  New  York  and  filed  a  motion  to  transfer  venue  under 
Section  3237 (b) .  The  district  court  granted  the  motion  relying  on  reasoning 
similar  to  that  of  the  Solcanon  decision  and  the  case  was  transferred  to  the 
Eastern  District  of  New  York.  The  New  York  court  retransf erred  the  case  to 
Vfest  Virginia,  citing  the  Clemente  decision.  The  Vfest  Virginia  court  then 
refused  to  delay  the  prosecution  of  Nardone 's  two  co-defendants  and  refused 
to  redocket  the  prosecution  against  Nardone.  The  result  is  that  at  the 
present  time  Nardone  cannot  be  prosecuted  in  either  West  Virginia  or  New 
York.  The  United  States  has  filed  a  petition  for  mandamus  with  the  Fourth 
Circuit,  seeking  revieiv  of  the  decision  to  transfer  the  case  to  New  York  and 
requesting  that  the  Vfest  Virginia  court  be  oatpelled  to  hear  the  case. 

Nardone  illustrates  the  difficulties  caused  by  a  liberal  interpretation 
of  Section  3237.  The  trial  of  Nardone 's  two  co-defendants  comenced  on 
Decerrber  13,  1982,  and  continued  xmtil  January  5,  1983,  with  twenty-seven 
witnesses  testifying.  When  the  ijnpasse  over  the  place  of  prosecution  of 
Neirdone  is  resolved,  a  like  amount  of  court  tine  and  prosecutorial  resources 
will  again  be  expended;  another  panel  of  twelve  jurors  along  with  alternates 
will  be  called  to  serve;  and  the  various  witnesses  will  be' inconvenienced 
again  by  being  subpoenaed  to  testify  a  second  time.  Indeed,  if  the  case  is 
ultimately  transferred  to  Mew  York,  the  inconvenience  to  witnesses  required 
to  travel  frcxn  West  Virginia  to  New  York  to  give  testimony  will  be  great. 


Finally,  the  scope  of  Section  3237(b)  and  of  the  Solonr>n  decision  is 
before  the  Ninth  Circuit  in  United  States  v.  Dahlstrcn,  Nos.  82-1137, 
82-1138,  82-1141,  82-1142  and  82-1143.  The  case  involves  five  defendants 
who  were  convicted,  following  a  jury  trial  in  the  Western  District  of 
Washington,  of  offenses  arising  out  of  the  promotion  and  sale  in  the  State 
of  VJashington  of  fraudulent  tax  shelters  in\'olving  foreign  trusts  and  sham 
transactions.  Ttte   trial  took  29  days  over  a  two-month  period;  the  evidence 
consisted  of  testimony  by  40  witnesses  and  the  introduction  into  evidence  of 
over  250  exhibits  (many  of  which  were  multi-document  exhibits) .  IVio  of  the 
defendants,  including  the  primary  defendant  Dahlstrom,  filed  motions  under 
Section  3237 (b) .  Dahlstrcn  was  a  resident  of  Texas  and  the  other  defendant 
resident  of  Arizona.  The  district  court,  prior  to  the  decision  in  Solonon, 
denied  the  motions.  These  two  defendants  now  contend  that  their  convictions 
should  be  overturned  and  their  cases  remanded  for  a  transfer  of  venue  and 
retrial  in  Texas  and  Arizona  respectively.  The  United  States  in  urging  that 
the  convictions  be  sustained,  contends  that  Solomon  is  distinguishable  on 
the  facts  and  alternatively  suggests  that  if  Solomon  would  require  reversal, 
the  natter  should  be  heard  by  the  Ninth  Circuit  en  banc. 

The   facts  of  the  Solcmon,  Nardone  and  Dahlstrcm  cases  are  conpelling 
evidence  that  whatever  the  correct  interpretation  of  current  Section 
3237 (b) ,  legislation  is  needed  to  expressly  oonfine  the  home  venue  option  to 
the  situation  which  prcnpted  its  enactment — a  prosecution  in  which  venue  is 
laid  in  a  district  where  the  defendant  does  not  reside  solely  on  the  basis 
of  the  receipt  by  the  IRS  of  materials  transmitted  by  mail.  Section  3237(b) 
was  intended  to  be  a  shield  against  the  power  of  the  Govemmsnt  to  prosecute 
a  defendant  in  a  district  remote  frcm  his  residence  on  the  basis  of  a 
mailing  to  a  distant  office  of  the  IRS.   It  is  not  and  should  not  be  a  sword 
enabling  a  taxpayer  to  transfer  prosecution  to  a  place  remote  frcm  the 
primary  criminal  acts  sinply  on  the  fortuity  that  the  defendant  resided 

The  Section  3237  (b)  issue  has  arisen  primarily  in  nulti-defendant 
prosecutions  of  persons  proroting  fraudulent  tax  shelters.  The  Justice 
Department  cind  the  IRS  have  given  high  priority  to  these  JcLnds  of 
prosecutions  because  of  concerns  about  the  adverse  iirpact  of  these  criminal 


cictivities  on  tax  oarpliance  generally.  The  number  of  prosecutions 
involving  tax  shelters  has  increased  iji  recent  years.  There  there  has  been, 
however,  congressional  concern  that  a  greater  nuntoer  of  such  prosecutions 
have  not  been  initiated.  See  generally.  House  Hearings  before  the  Subcomm. 
on  Oversight  of  the  Ifouse  Cctnn.  on  Ways  and  fteans,  97th  Cong. ,  2d  Sess. 

Prosecutions  of  tax  shelter  cases  are  difficult  in  part  because  the 
transactions  in  these  cases  generally  are  extrerrely  ccitplex.  The  true  facts 
are  disguised  and  funds  raust  often  be  traced  through  multiple  corporations, 
partnerships  or  trusts.  The  witnesses  and  documentation  may  be  scattered 
throughout  the  United  States  and  even  overseas,  and  each  prosecution 
involves  a  major  conriitraent  and  outlay  of  resources  by  the  Justice 
Department,  the  IRS  and  the  courts.  Enactment  of  the  suggested  clarifi- 
cation to  Section  3237  (b)  would  siirply  ensure  that  the  public  need  not  bear  ■ 
the  cost  of  two  (or  in  cases  like  Dahlstrcm  three  or  possibly  even  more) 
substantially  similar  trials  arising  out  of  criminal  actions  taken  by 
persons  acting  in  concert.  The  amendnent  also  would  have  the  beneficial 
effect  of  avoiding  substantial  inconvenience  to  members  of  the  public 
necessarily  called  as  witnesses  in  such  prosecutions.  The  resources  of  our 
prosecutors,  investigators  and  the  courts  are  much  too  scarce  to  be 
squandered  unnecessarily  by  multiple  trials  of  the  prcnoters  of  these  tax 
illegal  tax  schemes. 


WEDNESDAY,  MAY  11,  1983 

U.S.  Senate, 
Subcommittee  on  Criminal  Law, 

Committee  on  the  Judiciary, 

Washington,  D.C. 
The   subcommittee    met    at    10:03    a.m.,    in    room    226,    Dirksen 
Senate  Office  Building,  Hon.  Paul  Laxalt  (chairman  of  the  subcom- 
mittee) presiding. 

Present:  Senator  Specter. 

Staff  present:  John  F.  Nash,  Jr.,  chief  counsel  and  staff  director; 
William  Miller,  general  counsel;  Beverly  McKittrick,  majority 
counsel;  and  Susan  Fanning,  chief  clerk. 


Senator  Laxalt.  All  right,  the  subcommittee  will  be  in  order. 

This  is  the  second  of  the  scheduled  hearings  on  Senate  bill  829, 
the  Comprehensive  Crime  Control  Act  of  1983.  Last  week,  this  sub- 
committee heard  from  the  Attorney  General  of  the  United  States 
and  from  other  distinguished  members  of  the  Department  of  Jus- 
tice and  the  Treasury  Department,  who  testified  in  support  of  the 
bill  from  the  point  of  view  of  Federal  law  enforcement. 

Today  we  are  honored  to  receive  testimony  from  eminent  offi- 
cials representing  the  perspective  of  State  and  local  law  enforce- 
ment officers.  Gov.  Charles  Robb  of  Virginia  is  the  chairman  of  the 
Committee  on  Criminal  Justice  and  Public  Protection  of  the  Na- 
tional Governors'  Association.  LeRoy  Zimmerman,  the  attorney 
general  of  the  Commonwealth  of  Pennsylvania,  is  the  chairman  of 
the  Criminal  Law  and  Law  Enforcement  Subcommittee  of  the  Na- 
tional Association  of  Attorneys  General.  And  District  Attorney 
Edwin  Miller  of  San  Diego  County,  Calif,  is  the  president-elect  of 
the  National  District  Attorneys  Association. 

The  appearance  of  these  gentlemen  before  the  subcommittee 
today  serves  to  remind  us  that  the  continuing  battle  against  crime 
is  fought  primarily  by  local  and  State  officers.  The  range  of  Federal 
criminal  law  jurisdiction  is  narrow  compared  to  the  jurisdiction  of 
the  States,  and  this  is  as  it  should  be.  The  Founders  of  our  Repub- 
lic intended  the  States  to  have  this  responsibility,  and  our  Consti- 
tution clearly  reflects  that  intent. 

Accordingly,  the  basic  purpose  of  Senate  bill  829  is  to  put  the 
Federal  criminal  justice  system  in  order,  not  to  make  unwarranted 
intrusions  into  the  areas  of  State  and  local  law  enforcement.  How- 



ever,  the  extensive  reforms  included  in  S.  829  and  the  proposals  in 
the  bill  to  strengthen  our  ability  to  fight  organized  crime  and  to 
put  the  illegal  drug  industry  out  of  business  are  bound  to  have  a 
significant  effect  on  State  and  local  law  enforcement  efforts.  For 
this  reason,  it  is  important  to  have  the  advice  and  counsel  of  the 
organizations  represented  by  these  distinguished  witnesses  before 
[The  prepared  statement  submitted  by  Senator  Biden  follows:] 

Prepared  Statement  of  Senator  Joseph  R.  Biden,  Jr. 

I  would  like  to  welcome  today  the  prominent  government  officials  who  will  be  tes- 
tifying on  these  important  criminal  justice  initiatives.  As  elected  officials  I  am  sure 
they  have  heard,  as  I  have,  that  the  citizens  of  this  country  want  the  criminal  jus- 
tice system  to  work  better  than  it  has  to  date.  They  want  an  effective,  efficient  and 
fair  system  to  punish  law  breakers  and  to  protect  them  and  their  families  from  the 
personal  and  financial  hardships  that  result  from  crime. 

However,  if  we  are  to  ever  restore  the  publics'  confidence  in  our  commitment  to 
crime  and  drug  control  then  we  can't  continue  to  rhetorically  call  for  wars  on  crime 
or  drugs.  We  have  done  what  in  the  past  and  the  public  has  seen  us  lose  these  wars 
built  on  rhetoric. 

As  the  ranking  minority  member  of  the  Judiciary  Committee  I  found  the  Presi- 
dents proposed  cuts  to  law  enforcement  in  1981  to  be  inconsistent  with  his  state- 
ments for  strong  crime  control  measures.  Proposals  to  eliminate  434  positions  in 
DEA,  eliminate  all  justice  assistance  programs  to  State  and  local  agencies,  close  all 
State  and  local  drug  task  forces,  freeze  funds  for  undercover  investigations  do  not 
demonstrate  a  commitment  to  solving  an  unacceptable  crime  and  drug  abuse  prob- 
lem. Had  it  not  been  for  the  Governments,  State  attorney  generals,  law  enforcement 
associations,  and  the  U.S.  Congress  those  budget  cuts  would  have  had  drastic  impact 
on  the  Federal,  State,  and  local  response  to  crime  and  severely  damaged  the  morale 
of  many  hard  working  law  enforcement  people. 

I  believe  we  are  all  on  a  new  course  this  year  in  which  the  Congress  and  now  the 
administration  recognizes  you  can't  talk  about  a  serious  effort  to  make  in  roads  in 
the  crime  and  drug  problem  without  committing  resources. 

I  sincerely  believe  that  the  President  has  begun  to  commit  the  resources  to  im- 
prove our  law  enforcement  agencies.  The  increases  in  budgets  for  Federal  agencies, 
this  year,  the  start  up  of  the  task  forces  and  support  for  assistance  funds  for  State 
and  local  agencies  demonstrate  a  willingness  to  improve  our  law  enforcement  agen- 

With  respect  to  the  administration's  bill  before  us  is  an  example  of  apparently 
well-intentioned  legislation  that  has  aroused  a  great  deal  of  criticism — with  one 
very  important  difference.  Most  of  this  bill  has  been  overwhelmingly  approved  by 
my  colleagues  in  the  Senate  and  a  substantial  portion  was  already  proved  by  the 
House.  In  addition,  last  Congress  the  Senate  and  House  Judiciary  Committee  mem- 
bers made  substantial  progress  in  agreeing  upon  bail  and  sentencing  reform  legisla- 
tion— so  much  progress  that  it  was  only  the  press  of  time  at  the  end  of  the  Congress 
that  prevented  those  measures  from  going  to  the  President  as  well.  Even  the  Presi- 
dent's veto  of  the  bipartisan  crime  bill  was  accompanied  by  a  strong  statement  of 
support  for  many  of  its  provisions. 

All  of  us  must  appreciate  the  necessity  of  once  again  passing  those  improvements 
in  current  law  on  which  agreement  has  already  been  reached.  In  addition,  it  is  clear 
that  the  sooner  we  pass  bail  and  sentencing  legislation,  the  greater  the  likelihood 
that  our  colleagues  in  the  House  will  also  act  on  those  reforms. 

By  this  process  we  are  virtually  assured  of  enactment  into  law  of  a  significant 
criminal  law  reform  package  of  legislation  in  the  98th  Congress. 

I  strongly  believe,  however,  that  the  administration's  proposal  may  delay  or  even 
prevented  that  result.  That  bill,  the  Comprehensive  Crime  Control  Act  of  1983  (S. 
829)  contains  provisions  which  were  not  in  the  package  which  passed  the  Senate  95 
to  1.  They  were  not  in  it  for  a  very  good  reason — we  were  unable  to  reach  agree- 
ment. Some  of  those  provisions — most  notably  changes  in  habeas  corpus  and  in  the 
exlusionary  rule  were  not  even  reported  by  the  Judiciary  Committee,  despite  many 
months  of  effort.  And,  we  all  know  that  any  proposal  to  establish  Federal  death  pen- 
alty procedures  faces  a  certain  filibuster.  Last  Congress  proponents  of  those  bills 
recognized  that  the  only  way  to  pass  a  comprehensive  package  of  legislation  was  by 


moving  controversial  bills  separately.  That  decision  was  correct  last  Congress  and  it 
is  correct  this  Congress. 

Senator  Laxalt.  Gentlemen,  I  welcome  you  to  the  Subcommittee 
on  Criminal  Law,  and  I  look  forward  to  hearing  your  comments 
and  evaluations  of  the  crime  package. 

Our  first  witness  will  be  Gov.  Charles  Robb  of  the  Common- 
wealth of  Virginia. 

Governor,  we  are  delighted  to  have  you  with  us  this  morning. 
You  may  proceed  in  any  fashion  that  you  wish. 


Governor  Robb.  Thank  you,  Mr.  Chairman.  I  am  delighted  to  be 
here  and  I  appreciate  very  much  the  invitation  to  appear  before 
you  principally  as  the  representative  of  the  National  Governors' 
Association,  as  you  indicated,  as  chairman  of  the  Committee  on 
Criminal  Justice  and  Public  Protection,  but  also  I  will  have  a  few 
comments  that  relate  to  some  of  the  things  that  we  are  doing  in 
my  own  State  and  others. 

I  think  that  the  testimony  that  I  have  given  to  you  and  members 
of  the  committee  in  written  form  pretty  thoroughly  addresses  the 
policy  positions  that  the  Nation's  Governors  have  enacted  formally, 
and  I  will  be  happy  to  elaborate  on  any  of  those  if  you  think  it  is 
appropriate,  but  I  will  not  cause  you  to  have  to  sit  through  an  ex- 
tensive reading  of  that  testimony  at  this  time,  in  accordance  with 
the  expressed  wishes  of  your  very  kind  invitation. 

Senator  Laxalt.  We  appreciate  your  consideration,  Governor. 

Your  full  statement  will  be  filed  in  the  record  for  the  benefit  of 
my  colleagues.  You  may  summarize  it,  characterize  it  in  any  fash- 
ion that  you  wish. 

Governor  Robb.  Thank  you. 

Obviously  the  Nation's  Governors,  the  States,  and  I  am  sure  that 
the  testimony  of  the  two  distinguished  representatives  of  the  State 
attorneys  general  and  district  attorneys  will  hit  on  a  number  of  the 
same  points,  but  we  are  very  obviously  concerned  and  we  applaud 
the  effort  of  the  Federal  Government  to  address  this  problem  at 
the  Federal  level.  And  I  will  say,  try  to  suggest  some  of  the  areas 
where  we  think  it  is  particularly  important  as  it  interacts  with 
State  policy  and  some  of  the  things  that  we  are  concerned  about. 

The  simple  statistics  that  compel  all  of  us  to  look  at  this  problem 
in  a  much  more  serious  way,  just  a  couple  of  them  that  most  of  us 
are  familiar  with,  but  if  every  2.4  seconds  we  have  a  crime,  obvi- 
ously we  have  a  pretty  serious  problem.  The  serious  crimes  of  rape, 
theft,  robbery  and  assault  affecting  some  25  million  households 
each  year  and  some  68  percent  of  our  American  public  are  con- 
cerned that  crime  is  on  the  rise  in  this  country.  And  I  think  that 
this  gives  some  indication  of  the  degree  of  public  concern  to  which 
we  are  all  responding  in  one  way  or  another. 


Specifically  the  areas  of  the — Senate  bill  829 — maybe  I  should  di- 
gress at  first  and  simply  say  that  there  is  nothing  that  the  Nation's 
Governors,  in  terms  of  their  formal  policy  positions,  have  seen  in 
that  legislation  with  which  they  specifically  disagree  in  any  sub- 
stantive way.  There  are  a  number  of  areas  that  because  of  the  con- 
cepts of  federalism  that  we  would  not  have  addressed  in  our  policy, 
but  I  would  like  to  talk  then  about  some  of  the  areas  where  there 
is  specific  overlap  in  terms  of  some  of  the  concerns,  probably  the 
most  important  area  to  the  States  at  this  point  is  the  old  question 
of  narcotics  enforcement  and  illegal  drug  trafficking. 

We  had  a  symposium,  as  a  matter  of  fact,  that  led  off  the  most 
recent  meeting  of  the  Nation's  Governors  at  the  end  of  February  in 
which  the  Attorney  General,  William  French  Smith,  and  the  Direc- 
tor of  the  FBI,  Judge  Webster,  appeared  with  several  of  the  Na- 
tion's Governors  talking  about  this  specific  problem.  And  as  a 
matter  of  fact,  I  would  like  to  make  a  copy  of  the  proceedings  of 
that  available  to  you  and  to  other  members  of  the  subcommittee 
and  to  any  others  that  might  be  desirous  of  reviewing  some  of  the 
testimony  that  was  taken  in  that  particular  proceeding. 

Specifically  we  are  concerned  about  the  need  for  increased  educa- 
tion efforts.  We  are  concerned  about  the  need  to  intensify  interdic- 
tion efforts.  We  are  particularly  concerned  in  this  area  with  the  in- 
ternational scope  of  the  problem  as  discussed  in  some  detail  in  this 
particular  booklet,  which  I  will  leave  with  you  when  I  depart. 

We  recognize  the  international  scope  of  the  problem,  the  source 
question  which  is  clearly  beyond  the  realm  of  the  States  to  combat, 
and  we  rely  almost  exclusively  on  the  Federal  Government  in  that 
particular  area.  We  applaud  efforts  that  are  designed  to  interdict 
that  traffic  at  the  source  which  are  clearly  outside  of  our  own 
areas.  We  have  increased  our  own  State  surveillance  in  significant 
ways.  Virginia,  for  instance,  we  have  authorized — I  have  recently 
signed  an  executive  order  authorizing  the  National  Guard  to  in- 
crease surveillance  activities,  although  they  have  no  specific  en- 
forcement powers.  Our  State  police,  I  believe  most  recent  figures 
indicate  some  81  members  of  that  force  are  assigned  specifically  to 
this  particular  area.  So  it  is  a  problem  that  all  of  us  recognize  and 
all  of  us  are  dealing  with  in  one  form  or  another.  But  the  use  of 
the  military,  we  think,  is  a  valuable  component  in  this  entire  ap- 

The  need  for  information  and  data  that  relate  to  the  drug  en- 
forcement question  is  one  that  we  share  across  the  board.  We  rec- 
ognize the  sensitive  nature  of  intelligence  and  information  that  is 
developed  in  the  drug  suppression  activities  and  the  reluctance  on 
the  part  of  agencies,  even  within  the  same  strata  of  government, 
much  less  across  State,  local,  and  Federal  boundaries  to  release  in- 
formation that  might  compromise  the  integrity  of  a  particular  in- 
vestigation. At  the  same  time,  we  think  that  there  is  a  clear  need 
for  as  much  centralized  intelligence  as  possible,  and  we  are  pleased 
that  this  is  addressed. 

There  is  a  need  for  obviously  a  concerted  street  enforcement  ac- 
tivity, and  much  of  this  is  clearly  a  State  and  local  responsibility. 
And  the  States  are  addressing  this  in  a  variety  of  different  ways. 
We  believe  that  there  is  need  in  this  particular  area  for  standard- 
ized legislation  and  the  Criminal  Justice  and  Public  Protection 


Committee  is  currently  in  the  process  of  putting  together  a  pro- 
posed uniform  package  that  would  permit  all  of  the  States  to  take 
a  look  at  what  other  States  are  doing  so  that  the  major  traffickers 
will  not  be  able  to  pick  and  choose  between  points  of  entry  and  the 
various  differences  in  State  law  in  order  to  carry  out  their  activity. 

We  have  noticed,  particularly  in  the  Southern  States,  which  have 
been  hardest  hit  by  the  importation  of  drugs,  that  when  one  State 
increases  an  activity,  frequently  it  will  tend  to  divert  that  transpor- 
tation into  other  States.  And  we  have  had  a  meeting  with  the 
Southern  Governors  alone,  simply  to  talk  about  joint  efforts  to  ad- 
dress this  problem,  and  we  will  continue  to  work  in  that  particular 

Clearly  there  is  a  need  for  coordination  of  the  efforts  of  the  agen- 
cies at  all  levels,  and  we  are  pleased  that  that  is  addressed,  and  the 
Governors  will  continue  to  look  at  that  particular  question. 

The  question  of  forfeiture  reform  is  one  that  we  find  particularly 
appealing  because  it  seems  to  me  that  the  only  way  we  are  going  to 
have  a  major  impact  is  to  cripple  economically  those  who  engage  in 
drug  trafficking,  any  forfeitures,  and  it  is  addressed  in  both  this 
bill  and,  I  think,  slightly  to  a  different  extent  in  Senate  bill  830; 
that  would  remove  and  penalize  those  who  traffic  for  any  convey- 
ance that  is  related  to  it,  whether  it  is  planes,  boats,  cars,  the  pro- 
ceeds of  illegal  drug  trafficking  and  things  of  that  nature  seems  to 
us  to  be  a  step  in  the  right  direction. 

Florida  has  instituted  a  program  that  began  in  July  1982,  and  by 
May  1983  some  $658,000  already  had  been  deposited  in  a  Florida 
forfeiture  fund.  Virginia  law  took  effect  last  July.  Statistics  are  not 
yet  available  in  that  particular  area,  but  the  concept  of  requiring 
forfeiture  is  one  that  we  find  is  effective  and  certainly  pushes  in 
the  right  direction. 

Another  area  that  is  not  perhaps  as  critical  in  terms  of  your 
overall  consideration  of  the  bill,  but  one  that  the  States  feel  is  par- 
ticularly appropriate,  has  to  do  with  the  surplus  property  that 
might  be  available  for  penal  institutions,  some  39  States  at  this 
point  are  under  court  order  to  reduce  overcrowding  in  one  form  or 
another.  The  prison  population  continues  to  increase.  At  the  end  of 
1982  alone,  there  were  some  412,303  inmates  in  Federal  and  State 
prisons,  and  that  represented  an  annual  increase  of  some  43,000.  So 
it  is  a  problem  that  does  not  go  away.  It  becomes  more  difficult  to 

In  Virginia,  like  many  other  States,  we  are  in  the  process  of  con- 
structing additional  prison  facilities,  and  we  have  to  plan  some  8  to 
10  years  down  the  road  in  terms  of  the  demands  on  our  system, 
and  most  other  States  have  the  same  problem.  And  to  the  extent 
that  Federal  properties,  surplus  Federal  properties  are  available  to 
help  in  some  of  the  capital  costs,  this  can  be  a  very  important  pro- 
vision for  us. 

Senator  Laxalt.  While  you  are  talking  about  facilities,  is  there 
any  movement  in  Virginia  or  some  of  these  other  States  in  connec- 
tion with  private  enterprise  perhaps  getting  into  the  field  where 
we  have  had  some  increase  to  that  effect? 

Governor  Robb.  Mr.  Chairman,  when  you  say  in  private  enter- 

Senator  Laxalt.  Yes. 


Governor  Robb.  To  run  as  a  contractor? 

Senator  Laxalt.  No,  no,  not  operationally.  Simply  to  provide  the 
facility  and  lease  them  back  to  the  State  or  the  local  subdivision,  or 
perhaps  even  to  the  Federal  Government. 

Governor  Robb.  Mr.  Chairman,  I  cannot  cite  you  any  specific  ex- 
ample. In  Virginia  the  private  sector  is  very  much  concerned  about 
the  problem  and  are  assisting  in  a  variety  of  different  ways.  But  in 
terms  of  specifically  making  property  available,  I  do  not  have  any 
current  evidence  that  I  can  cite  to  you.  I  will  check  and  if  we  have 
anything  of  that  nature,  either  here  or  elsewhere,  I  will  be  happy 
to  provide  those — that  kind  of  information  for  you. 

In  terms  of  the  sentencing  reform  effort,  although  some  of  the 
efforts  that  are  addressed  go  beyond  the  scope  of  State  inquiry,  we 
are  particularly  pleased  with  the  increased  emphasis  on  sentences 
for  drug  violators,  those  that  commit  crimes  using  a  dangerous 
weapon,  and  those  that  involve  serious  bodily  injury  or  where  a 
death  results  in  those  particular  crimes.  I  think  most  of  the  States 
in  their  own  treatment  of  the  same  types  of  offenses  have  in- 
creased the  penalties,  in  some  cases  have  increased  mandatory  pen- 
alties, particularly  for  commission  of  crimes  with  firearms  ,  and  we 
certainly  applaud  that  particular  approach. 

Senator  Laxalt.  If  the  Governor  would  yield. 

While  we  are  talking  about  sentencing,  have  you  given  any  par- 
ticular thought  about  who  should  determine  the  sentencing  guide- 
lines, whether  they  should  be  judges  or  criminal  lawyers? 

Governor  Robb.  We  are  in  the  process  right  now  in  Virginia,  the 
National  Governors'  Association  has  not  specifically  addressed  the 
question  in  Virginia.  I  have  appointed  a  sentencing  task  force 
which  consists  of  legislators,  judges,  corrections  officials,  a  variety 
of  others,  who  have  professional  input,  and  a  task  force  report  is 
going  to  be  available  toward  the  end  of  this  year  to  provide  us  with 
this  kind  of  guidance. 

I  think  in  terms  of  any  personal  response  to  that  question,  I 
would  prefer  to  wait  until  this  committee  completes  its  work.  I  am 
not  aware  of  any  NGA  policy  position  that  would  reflect  specifical- 
ly on  that  question.  But  if,  subsequently,  I  find  that  we  have  any- 
thing that  addresses  it,  I  will  send  it  in. 

Senator  Laxalt.  As  you  move  along,  we  would  appreciate  very 
much  being  advised.  The  mix  that  we  have  in  connection  with  a 
group  that  is  finally  going  to  deal  with  this  is  going  to  be  critical 

Governor  Robb.  Again  I  will  be  happy  to  try  to  provide  any  addi- 
tional input  into  that  area  that  might  be  appropriate. 

There  is  another  area  that  we  find  particularly  appealing  that 
has  to  do  with  the  habeas  corpus  reform.  Clearly,  in  order  to  in- 
crease public  confidence  in  the  system  of  criminal  justice,  there  has 
to  be  some  degree  of  finality  to  the  process.  The  concept  of  both 
finality  and  swiftness,  we  happen  to  think,  are  important  elements 
in  the  entire  process.  And  as  you  know,  there  has  been  quite  a  bit 
of  concern  at  the  State  level  about  the  habeas  corpus  procedures 
that  permit  appeals  in  many  cases,  in  most  cases  to  be  honest,  that 
are  frivolous  in  nature  to  proliferate  and  to  extend  the  period  of 
time  until  the  final  conclusion  of  the  carrying  out  of  the  sentence. 


Justice  Powell,  I  noted,  addressed  that  topic,  I  believe  it  was  in 
Florida.  I  do  not  recall  where  the  meeting  took  place  but  I  remem- 
ber reading  in  the  last  few  days  in  connection  specifically  with  the 
capital  punishment,  but  the  general  concern  remains  that  we 
manage  to  protract  those  appeals  to  the  point  that  the  certainty  of 
that  sentence  or  certainly  the  swiftness  provide  very  little,  if  any, 
real  deterrent.  It  is  a  measure — it  is  a  major  concern  for  all  of  us. 

Senator  Laxalt.  Do  you  see  any  need  for  the  Feds  to  obtain  any 
kind  of  jurisdiction  over  State  prisons  in  the  whole  area  of  habeas 
corpus  reform  or  otherwise? 

Governor  Robb.  Well,  I  think  to  the  extent  that  the  Federal 
courts  continue  to  protect  the  due  process,  and  that  portion  seems 
to  me  to  be  reasonable  as  is  consistent  with  the  Governors'  posi- 
tion. We  would  suggest  that  a  time  limit  for  raising  any  question, 
the  one  year  is  particularly  appropriate  and  we  would  suggest  that 
a  determination  as  to  factual  questions  as  long  as  they  have  been 
fairly  and  reasonably  ascertained  by  the  State  courts,  that  the  Fed- 
eral system  accord  appropriate  deference  to  the  State  courts  in 
that  area.  I  think  that  as  an  ultimate  protection  against  the  abso- 
lute violation  of  individual  rights,  we  would  not  object  to  that  rule 
but  it  ought,  in  our  judgment,  be  considerably  more  limited  and 
the  proposals,  as  I  have  had  an  opportunity  to  review  them,  cer- 
tainly move  in  that  direction  and  are  consistent  with  the  policy 
that  we  are  advocating. 

Senator  Laxalt.  I  rather  imagine  we  would  have  vigorous  consti- 
tutional challenges,  too,  if  we  attempted  to  exclude  ourselves  com- 
pletely from  that  area. 

Governor  Robe.  I  think  there  is  no  doubt  that  there  would  be 
constitutional  challenges.  It  may  be  that  the  Attorney  General  or 
the  district  attorney  may  have  some  additional  thoughts  on  that 

Senator  -  Laxalt.  So  your  thought  is,  and  it  coincides  with  the 
thought  of  the  subcommittee,  that  we  should  certainly  shorten  the 
process  in  some  fashion? 

Governor  Robb.  Absolutely.  And  almost  anything  that  is  done 
consistent  with  deference  to  due  process  that  we  are  all  concerned 
about  would  make  sense  to  us.  There  is  too  much  evidence  that  the 
failure  to  provide  swift  and  certain  punishment  contributes  to  the 
increase  in  criminal  activity  because  there  are  too  many,  particu- 
larly those  who  are  referred  to  from  time  to  time  as  career  crimi- 
nals, that  simply  know  that  the  system  is  not  going  to  cause  them 
to  have  to  pay  the  penalty  for  violating  our  laws  and  that  that  can 
be  protracted  and  dragged  out  in  such  a  way  that  it  becomes 
almost  a  mockery  in  some  cases. 

Senator  Laxalt.  We  are  close  to  that  already,  are  we  not? 

Governor  Robb.  In  another  area,  Justice  assistance,  generally  we 
think  that  there  is  clearly  a  Federal  role  in  providing  leadership, 
research,  technical  assistance,  and  training  coordination  of  the 
Federal  and  State  interests.  We  like  the  block  grant  approach.  I  do 
not  think  it  would  come  as  any  surprise  that  the  Nation's  Gover- 
nors and  most  of  the  States  as  a  general  policy  matter,  assuming 
that  the  same  degree  of  funding  is  available,  I  think  that  a  number 
of  these  areas  that  have  a  particular  State  nexus  can  and  ought  to 
be  administered  at  the  State  level.  And  consequently  I  think  we 


are  consistent  in  our  desire  to  follow  up  and  support  efforts  to 
create  those  block  grants  where  the  controls  and  the  flexibility 
hopefully  is  increased,  where  the  States  is  50  individual  laborato- 
ries for  experimentation  in  a  variety  of  areas,  it  is  important  in  our 
judgment,  and  also  hopefully  where  the  same  general  level  of  fund- 
ing that  might  be  available,  there  has  been  some  evidence  in  other 
programs  that — programs  that  were  envisioned  as  approximately 
90-percent  funded,  in  the  categorical  grants,  when  transferred  to  a 
block  grant,  end  up  being  funded  at  considerably  less  and  the 
States  were  less  enamored  of  the  prospect  of  taking  over  those  pro- 
grams simply  because  the  expectations  remained  high  and  the  effi- 
ciencies of  the  States  could  effect  themselves,  were  diminished  by 
the  fact  that  the  funding  was  cut  considerably  more  than  it  had 
been  in  other  areas.  That  does  not  relate  so  much  to  this,  but 
simply  a  general  statement  that  most  Governors  do  not  hestiate  to 
articulate  whenever  they  get  a  chance. 

Senator  Laxalt.  We  noticed  last  year  in  the  federalism  effort  we 
underwent  that  this  was  a  principal  concern  which  we  heard  about 
not  only  from  Governors  but  from  mayors — the  assumption  would 
be  one  of  resources. 

Governor  Robb.  There  were  a  number  of  elements  about  the 
whole  question  of  federalism  and  New  Federalism  that  the  Gover- 
nors found  very  attractive.  And  if  we  can  find  an  appropriate 
forum  to  continue  that  discussion,  we  would  certainly  like  to  do  so. 

Mr.  Chairman,  I  will  conclude.  I  think  that  those  are  the  areas 
that  impact  specifically  on  the  States,  those  areas  in  which  NGA 
policy  positions  have  already  been  taken,  that  I  think  I  could  in 
good  conscience  represent  to  you  and  the  other  members  of  the 
subcommittee  reflect  the  consensus  of  the  Nation's  Governors.  Ob- 
viously there  are  individual  opinions  on  a  variety  of  other  areas 
and,  as  I  say,  I  am  not  aware  specifically  of  anything  in  the  pro- 
posed legislation  that  goes  against  the  grain  of  any  NGA  position. 
And  specifically  I  think  that  the  Nation's  Governors,  although  they 
might  want  to  take  issue  on  the  basis  of  personal  experience  or 
State  experience,  with  one  or  more  of  the  specific  provisions  in  the 
legislation,  would  applaud  the  overall  effort,  and  be  very  pleased  to 
be  generally  supportive. 

Senator  Laxalt.  Thank  you  very  much.  Governor. 

I  have  just  a  couple  of  questions  for  you  because  I  know  you  are 
operating  on  a  fast  track. 

Will  the  passage  of  major  Federal  criminal  reform  legislation,  in 
your  opinion,  encourage  the  States  to  adopt  similar  reforms? 

Governor  Robb.  The  answer  I  would  say  is  yes,  that  the  States 
are  already  moving  in  this  direction,  as  I  have  indicated,  and  in 
some  areas,  particularly  drug  enforcement,  we  are  preparing  to 
provide  guidelines  that  might  assist  States  in  addressing  this  par- 
ticular question.  But  the  answer  is  yes. 

Senator  Laxalt.  I  would  assume  NGA  would  be  out  in  front  to 
accomplish  that  result  because  if  we  can  have  a  uniform  applica- 
tion for  the  reasons  that  you  mentioned,  we  would  benefit. 

Governor  Robb.  NGA  would  be  very  pleased  to  work  with  you 
and  your  committee  and  Congress  and  the  President  and  various 
other  associations,  the  Conference  of  State  Legislators,  the  attor- 
neys general,  district  attorneys  and  all  others  who  are  concerned 


about  this  particular  problem.  We  would  like  very  much  to  have  an 
opportunity  to  cooperate  on  this  area  as  much  as  we  can. 

Senator  Laxalt.  You  mentioned  the  problem  with  drug  traffick- 
ers. Of  course,  this  is  one  of  the  principal  problems  that  we  con- 
front. It  is  one  of  the  main  focuses,  really,  of  this  legislation. 

Do  the  provisions  of  the  bail  reform  section  of  Senate  bill  829  suf- 
ficiently address  the  problem? 

Governor  Robb.  We  are  very  pleased  with  the  bail  reform  provi- 
sions. To  be  perfectly  honest,  we  attempted  in  Virginia  to  provide 
some  specific  guidelines  in  bail  reform  and  we  have  not  yet  been 
successful.  We  are  going  to  continue  to  pursue  that  course. 

Some  of  the  guidelines  that  are  incorporated  in  S.  829  are  more 
specific  and,  to  that  extent,  we  find  it  extremely  helpful. 

Senator  Laxalt.  What  kind  of  problems  are  you  running  into? 
Are  they  mainly  political? 

Governor  Robb.  I  would  say  that  we  are  very  fortunate  in  Virgin- 
ia to  have  some  distinguished  representatives  of  the  defense  bar 
that  served  in  our  general  assembly  and  they  are  very  persuasive 
on  some  of  these  issues.  I  would  not  characterize  the  entire  argu- 
ment that  way,  but 

Senator  Laxalt.  I  know  what  you  are  saying. 

Governor  Robb.  But  I  think  you  follow  my  reasoning. 

Senator  Laxalt.  Does  NGA  favor  a  particular  Justice  assistance 
proposal?  You  indicated  that  generally  you  are  in  support  of  the 
concept.  Do  you  have  any  specific  proposal? 

Governor  Robb.  I  do  not  have  anything  specific  in  terms  of  policy 
at  this  point. 

I  will  be  happy  to  follow  up  with  any  additional  areas. 

Senator  Laxalt.  As  we  move  along 

Governor  Robb.  We  will  be  happy  to 

Senator  Laxalt.  If  you  see  anything  more  specific  than  has  gen- 
erally been  outlined,  please  let  us  hear  from  you. 

Governor  Robb.  We  would  be  delighted. 

Again  there  are  some  statistics  that  indicate  that  some  of  the  as- 
sistance in  the  past  has  provided  the  impetus  for  States  to  continue 
some  of  the  funding  and  some  of  the  things  that  they  have  done  on 
their  own  to  a  fairly  significant  degree.  And  so  assistance  in  some 
of  the  things  that  you  have  done  in  this  area  can  be  very,  very 
helpful  as  far  as  we  are  concerned. 

Senator  Laxalt.  Now,  finally,  in  your  statement — this  deals  with 
the  problem  of  insanity — in  your  statement  you  refer  to  the  verdict 
of  guilty  but  mentally  ill  which  some  States  have  adopted. 

Does  NGA  or  you.  Governor,  personally  favor  such  an  alterna- 

Governor  Robb.  I  would  have  to  speak  personally  on  this  particu- 
lar question.  NGA  has  not  formally  addressed  that  particular  topic. 

I  do  support  an  approach  which  is  quite  similar.  As  a  matter  of 
fact,  we  proposed  as  a  part  of  the  crime  package  that  the  attorney 
general  and  I  jointly  introduce  in  the  1982  session  of  the  general 
assembly,  prior  to  the  notoriety  that  was  associated  with  that  par- 
ticular approach  and  the  shooting  of  the  President,  and  the  nation- 
al concern  that  was  raised,  it  was  set  aside  at  that  time,  it  was  con- 
sidered and  withdrawn  in  the  1983  session  of  the  general  assembly. 
I  recognized  some  of  the  problems  in  that  area  but  personally  the 


approach  makes  sense  as  long  as  the  concern  is  related  to  whether 
or  not  the  individual  who  is  being  tried  was  competent  to  under- 
stand the  seriousness  or  the  gravity  of  the  offense  at  the  time  and 
to  provide  some  mechanism  for  dealing  with  the  punishment  that 
flows  from  a  decision  that  was — from  an  individual  that  was  capa- 
ble of  making  that  kind  of  decision. 

So,  personally,  we  like  the  movement  in  that  direction,  but  I 
have  to  tell  you  on  the  basis  of  our  own  experience  that  we  have 
not  been  successful  yet  in  Virginia  in  enacting  that  legislation. 

Senator  Laxalt.  Finally,  what  do  you  think  are  the  advantages 
or  disadvantages  over  a  verdict  of  not  guilty  by  reason  of  insanity 
when  that  is  coupled  with  automatic  commitment  procedures  to 
assure  immediate  mental  examination? 

Governor  Robb.  I  am  sorry,  I  am  not  sure  that  I  got  it. 

Senator  Laxalt.  I  was  referring  back  to  the  verdict  of  guilty  but 
mentally  ill.  What  are  its  advantages  or  disadvantages  over  a  ver- 
dict of  not  guilty  by  reason  of  insanity  when  it  is  coupled — when 
the  verdict  is  coupled  with  automatic  commitment  procedures  to 
ensure  automatic  mental  examination  and  treatment? 

Governor  Robb.  I  am  not  sure  that  I  can  address  that  question 
with  the  specificity  that  I  think  would  be  helpful. 

Well,  let  me — it  is  sufficiently  technical  that  I  would  be  winging 
it,  I  am  afraid,  to  try  to  compare  the  two  at  this  point. 

I  will  be  happy  to  provide  some  additional  comment. 

Clearly  the  comments  that  I  already  made  indicate  which  side 
we  fall  on,  at  least  I  do  personally.  I  will  be  happy  to  follow  up  and 
send  you  some  additional  information  in  that  area. 

Senator  Laxalt.  Thank  you  very  much.  We  will  be  moving  and 
exploring  into  this  whole  general  area  as  we  move  along  anyway. 

Well,  Governor,  we  certainly  thank  you  for  coming  in,  and  I 
might  say  as  far  as  the  members  of  the  subcommittee,  and  certain- 
ly the  chairman  here,  we  recognize  that  we  on  this  level  cannot  do 
it  alone.  Most  of  the  work  has  to  be  done  on  the  State  and  local 
level,  and  I  speak  as  a  former  Governor  and  a  former  prosecutor. 

Governor  Robb.  We  recognize  that  part  of  your  background,  Mr. 
Chairman,  which  encourages  us. 

If  you  can  convey  some  of  those  same  thoughts  not  only  to  the 
members  of  the  subcommittee  but  to  some  of  your  other  colleagues 
in  the  Senate  and  the  House  in  terms  of  the  appropriateness  of  the 
Federal,  State  and  local  responsibilities,  you  will  find  some  very 
willing  and  eager  advocates  to  support  your  position  in  the  State 
Capitals  around  the  country. 

Senator  Laxalt.  Very  well.  That  is  comforting  to  know.  And  as 
far  as  the  subcommittee  is  concerned,  I  probably  experience  the 
same  general  problems  that  you  have  in  the  Assembly  from  time- 
to-time.  Thank  you. 

Governor  Robb.  Further  deponent  sayeth  not. 

Senator  Laxalt.  Thank  you  very  kindly. 

Governor  Robb.  Thank  you,  Mr.  Chairman. 

Senator  Laxalt.  And  we  will  stay  in  touch. 

Governor  Robb.  Thank  you. 

Senator  Laxalt.  All  right. 

[The  prepared  statement  and  additional  material  submitted  by 
Governor  Robb  follow:] 


Prepared  Statement  of  Governor  Charles  S.  Robb 

Good  Morning. 

Mr.  Chairman,  and  distinguished  members  of  the  Subcommittee. 

\  am  pleased  to  have  the  opportunity  to  appear  before  you  today  to  discuss  S.S29, 
the  Comprehensive  Crime  Control  Act  of  19S3  and  its  impact  on  the  states.    I  appear 
before  you  today  in  my  capacity  as  chairman  of  the  Committee  on  Criminal  Justice  and 
Public  Protection  of  the  National  Governors'  Association.    The  views  that  I  share  with 
you  today  come  from  the  policies  adopted  by  the  National  Governors'  Association. 

Mr.  Chairman,  as  you  and  the  members  of  this  Subcommittee  know,  statecraft  is 
at  best  an  imperfect  science.    As  the  Congress  begins  work  on  a  major  legislative 
package  to  help  reduce  crime  in  our  country,  we  received  the  welcome  news  that  the 
crime  rate  has  gone  down  for  the  first  time  since  1977.    It's  not  clear  that  word  of  these 
hearings  produced  that  desired  result,  but  it's  a  thought  worth  consideration. 

While  we  may  not  have  the  exact  answer  to  why  the  crime  rate  has  dropped  for 
the  first  time  since  1977,  there  are  several  things  that  we  do  know.    We  know  that  in   1981: 

—  A  crime  was  committed  every  lA  seconds  in  our  country; 

—  Nearly  25  million  households  were  victimized  by  rape,  robbery,  theft  or  assault; 

—  More  than  20  percent  of  all  households  were  victims  of  at  least  one  larceny;  and 

—  Finally,  we  know  that  almost  one-half  of  our  citizens  feel  unsafe  to  walk  down  the 
street  in  their  own  neighborhoods,  according  to  a  Harris  poll. 

In  short,  crime  is  still  robbing  this  country  of  the  things  we  consider  most 
important.    It  is  claiming  the  lives  of  our  people,  invading  the  sanctity  of  our  homes,  and 
draining  billions  of  tax  dollars.   Worst  of  all,  crime  is  stealing  our  peace  of  mind  — 
making  us  a  nation  of  people  constantly  looking  over  our  shoulder  instead  of  looking 
ahead  to  where  we  should  be  going. 

I  don't  know  if  this  legislation  will  help  recapture  what  we  have  lost.    I  do  believe 
that  S.829,  the  Comprehensive  Crime  Control  Act  of  1983,  will  provide  important 
leadership  to  states  in  several  areas  —  using  the  states  as  a  laboratory  for  testing  new 
and  innovative  ideas. 

In  my  testimony  today,  I  will  highlight  those  areas  of  special  interest  to  NGA  and 
discuss  the  overall  impact  of  this  legislation  on  the  states.    I  will  also  present  some  of 
the  initiatives  that  we  have  taken  in  Virginia  to  deal  with  crime,  and  describe  initiatives 
of  other  states. 



The  bail  reform  in  provision  S.829  would  permit  the  court  to  consider  danger  to 
the  community  in  making  bail  determination.    Unfortunately,  present  law  would  allow  a 
dangerous  offender  to  go  free  if  his  past  record  demonstrates  an  insurance  of  court 

The  National  Governors'  Association  supports  reforming  the  bail  system  to  allow 
"danger  to  the  community"  to  be  a  consideration  for  releasing  an  individual.   Such  reform 
is  directly  responsive  to  the  one  critical  factor  in  the  public  fear  of  crime:   that  the 
system  upon  which  it  is  depending  for  protection  is  unconcerned  with  the  possible 
consequences  of  its  release  decisions.    We  also  feel  that  special  consideration  should  be 
given  to  constraints  on  the  release  of  individuals  with  prior  drug,  firearms  or  other  felony 
convictions.    Too  often  manufacturers  and  traffickers  of  illicit  drugs  are  released  on  bail 
only  to  flee  the  country  or  the  jurisdiction  in  which  they  are  arrested.   According  to 
Justice  Department  estimates,  there  are  approximately  3,000  drug  dealers  in  flight  from 
federal  warrants. 

We  in  the  Commonwealth  continue  to  grapple  with  the  bail  reform  issue.   Virginia 
law  permits  the  court's  consideration  of  an  accused  person's  possible  danger  to  himself 
and  the  public  when  granting  bail.   But  there  are  no  criteria  to  be  used  in  making  that 
decision.   During  the  1982  session  of  the  General  Assembly,  I  offered  legislation 
establishing  criteria  for  determining  the  danger  to  the  public.   These  criteria  included 
previous  violent  behavior  by  the  acoMcdt  use  of  firearms,  threatening  witnesses, 
narcotics  addiction,  multiple  prior  convictions  and  probationary  or  parole  status.   The 
measure  failed  to  pass  the  legislature,  but  we  will  continue  to  wrestle  with  this  issue. 

In  November  1982,  Florida  voters  approved  a  ballot  measure  permitting  judges  to 
use  discretion  in  setting  bail  in  certain  cases.   The  measure  is  aimed  at  drug  traffickers, 
especially  where  large  sums  of  money  are  involved.   Judges  are  permitted  to  deny  bail 
when  they  determine  that  a  defendant  would  be  likely  to  "jump"  bail  and  leave  the 


The  National  Governors'  Association  supports  an  increase  in  penalties  for  large- 
scale  importation  of  drugs.    NGA  also  supports  tough  penalties  where  violence  is 
threatened,  a  dangerous  weapon  is  used  or  serious  bodDy  injury  or  death  results.    We 
believe  that  sentences  must  be  e^iilehh  wid  retjonai. 


In  Virginia  we  are  studying  what,  if  anything,  we  should  do  about  our  present 
sentencing  practices  and  policies.    I  have  appointed  a  Sentencing  Task  Force  composed  of 
legislators,  citizens  and  criminal  justice  practitioners  to  examine  sentencing  practices 
and  policies  and  make  recommendations.    The  task  force  is  to  complete  its  work  by  this 
fall.    Their  report  will  provide  me  and  the  General  Assembly  with  valuable  guidance. 

1  do  know  that  several  states  have  developed  or  are  developing  special  programs  to 
deal  with  criminal  sentences.    Minnesota  has  been  using  a  sentencing  guidelines  approach 
for  several  years,  and  an  evaluation  revealed  a  73  percent  increase  in  imprisonment  of 
offenders  committing  serious  crimes,  and  a  72  percent  reduction  of  those  committing 
less  severe  offenses.    Minnesota  indicates  that  their  particular  guidelines  system  has 
allowed  them  to  deal  with  their  prison  capacity  problem  more  rationally.    The  National 
Institute  of  Justice  is  currently  funding  the  Maryland  Sentencing  Guidelines  Project.   The 
Project's  assigned  goals  are: 

—  Tc  increase  equity  in  sentencing,  i.e.,  to  reduce  unwarranted  variation  while 
retaining  judicial  discretion  to  individualize  sentences; 

—  To  articulate  an  explicit  sentencing  policy  while  providing  a  regular  basis  for 
policy  review  and  change; 

—  To  provide  information  for  new  or  rotating  judges;  and 

—  To  promote  increased  visibility  and  understanding  of  the  sentencing  process. 

Responsibility  for  overseeing  the  development  and  implementation  of  the 
guidelines  was  assigned  to  an  advisory  board  of  ten  judges  from  the  project  test 
jurisdictions.   To  broaden  the  perspective  of  the  board,  the  judges  added  eight  ex  officio, 
non-voting  representatives  of  the  legislative  and  executive  branches  of  government. 

Maryland  and  some  other  states  using  a  similar  approach  tell  us  that  the 
advantage  to  a  sentencing  guidelines  system  lies  in  its  ability  to  take  into  account 
systematically  and  publicly  the  most  common  variations  in  offenders  and  their  offenses, 
within  the  current  statutory  framework.    They  point  out  that  systematic  sentencing  can 
be  achieved  by  having  the  judiciary,  as  a  body,  agree  on  the  factors  to  be  considered  in 
making  sentencing  decisions.    Such  an  approach  is  apparently  intended  to  establish  a 

25-694   0-84-16 


policy  or  structure  within  which  judges  can  then  exercise  their  discretionary  powers.   It 
is  also  designed  not  to  be  overly  restrictive  by  the  inclusion  of  a  means  for  judges  to 
deviate  from  the  established  policy  in  compelling  circumstances. 

With  respect  to  the  sentencing  guidelines  approach  I  would  say  that  the  verdict  is 
not  in  yet  if  the  results  we  are  now  observing  in  the  several  states  utilizing  this  approach 
are  any  indication.   We  will  continue  to  watch  them  with  great  interest,  however. 

Mr.  Chairman,  recent  attention  to  forfeiture  reform,  intended  to  cripple  the  drug 
trafficker  economically,  is  attention  well-placed  and  resources  well-spent.    In  the  states. 
we  are  just  beginning  to  develop  new  forfeiture  laws  and  to  experience  the  results  of 
such  legislation. 

The  State  of  Florida,  for  example,  collected  $658,026.55  between  July  1982  and 
May  1983,  and  uses  it  to  administer  the  forfeiture  program  at  the  state  level.    Last  year, 
the  Virginia  legislature  passed  a  measure  providing  stronger  laws  regarding  the  forfeiture 
of  property  and  money  obtained  through  the  manufacture,  distribution  and  sale  of  illegal 
drugs.    This  measure,  which  took  effect  on  3u]y  1,  1982,  was  a  part  of  my  larger  crime 
package.    As  the  evidence  that  forfeiture  reforms  are  working  is  still  being  collected,  the 
nation's  Governors  strongly  support  this  provision  of  S.829. 

Although  NGA  does  not  have  a  policy  regarding  this  issue,  insanity  defense  reform 
is  a  major  issue  in  several  states  which  could  serve  as  models  for  developing  a  federal 
statute.   In  its  final  report  in  August  of  1981,  the  Attorney  General's  Task  Force  on 
Violent  Crime  recognized  the  states  of  Illinois,  Indiana,  and  Michigan  where  an 
alternative  insanity  plea  verdict  of  "guilty  but  mentally  ill"  was  enacted  to  enable  juries 
to  respond  better  to  situations  of  criminal  insanity.   Under  the  law  in  these  states,  a  jury 
may  recognize  a  defendant  as  mentally  ill,  but  nevertheless  hold  him  responsible  for  his 
criminal  actions,  provided  that  mental  illness  does  not  negate  the  defendant's  ability  to 
understand  the  unlawful  nature  of  his  conduct  and  his  ability  to  conform  his  actions  to 
the  requirements  of  the  law.   Once  an  individual  is  incarcerated,  corrections  intake  units 
make  a  psychiatric  evaluation.   If  the  individual  is  found  to  be  mentally  ill,  he  is  sent  to 
the  state  department  of  mental  health  for  treatment.    If  he  is  ever  considered  to  be 
mentally  fit  during  the  period  of  the  sentence,  he  is  returned  to  the  department  of 
corrections  for  completion  of  his  sentence.   In  this  way,  the  individual  is  held 


accountable  and  responsible  for  his  actions,  and  is  punished  accordingly. 


The  National  Governors'  Association  believes  that  one  of  the  principal  factors 
contributing  to  the  decline  in  public  confidence  in  criminal  justice  is  the  lack  of 
certainty  and  finality  in  the  criminal  justice  system.    Although  certainty  and  swiftness  of 
justice  have  been  universally  accepted  as  strong  deterrents  to  criminal  activity,  the 
diminishing  ability  of  the  states  to  carry  out  the  judgments  of  their  criminal  courts  has 
led  to  an  erosion  of  certainty. 

We  believe  that  the  Writ  of  Habeas  Corpus  was  designed  as  a  shield  to  protect 
innocent  citizens  and  not  as  a  sword  to  frustrate  the  administration  of  justice.    Today, 
however,  some  of  those  commendable  procedural  safeguards  attached  to  the  writ  are 
being  abused  and  have  become  instruments  with  which  to  delay  or  stymie  justice. 

Because  of  these  and  other  problems  caused  by  the  abuse  of  the  Writ  of  Habeas 
Corpus,  amendments  to  federal  criminal  law  are  necessary  to  require  the  orderly  and 
timely  presentation  of  claims  on  behalf  of  criminal  defendants  and  to  restore  finality  to 
the  criminal  justice  process  and  a  proper  respect  for  state  court  factual  determinations. 
Federal  law  should  be  amended  to: 

—  Require  that  a  district  judge,  rather  than  a  magistrate,  conduct  any 
evidentiary  hearing  held  in  a  habeas  corpus  proceeding  involving  a  prisoner 
held  in  state  custody. 

—  Recognize  the  legitimacy  of  the  "contemporaneous  objection  rule"  which 
bars  litigation  of  issues  not  properly  raised  unless  "cause  and  prejudice"  is 
shown  for  failing  to  comply  with  state  procedural  requirements. 

Establish  a  reasonable  time  limit  within  which  state  prisoners  must  institute 
a  federal  habeas  corpus  action  which  challenges  their  state  court  conviction. 

Require  a  habeas  corpus  court  to  accept  state  court  findings  of  fact  where 
there  is  an  evidentiary  basis  for  that  finding  providing  the  petitioner  was 
accorded  a  full  and  fair  hearing  on  the  factual  issue. 


The  reform  of  federal  habeas  corpus  proceedings  will  ensure  a  greater  finality  of 
state  crinninal  court  convictions  and  a  greater  deference  to  findings  of  fact  in  state 
criminal  proceedings.    This  proposal  is  not  designed  to  prevent  reasonable  review  of 
criminal  convictions  by  federal  courts,  but  to  prevent  the  filing  of  frivolous  and 
repetitious  petitions  for  habeas  corpus. 


The  issue  of  drug  trafficking  and  organized  crime  is  a  major  problem  faced  by 
Governors.    It  was  discussed  last  year  by  the  Southern  Governors  at  their  annual  meeting, 
and  by  NGA  at  their  annual  meeting.   Furthermore,  NGA  sponsored  a  major  symposium 
on  "Illegal  Drug  Trafficking  in  the  United  States"  during  the  most  recent  winter  meeting 
here  in  Washington.    We  discussed  the  seriousness  of  the  drug  problem  with  Attorney 
General  William  French  Smith  and  Federal  Bureau  of  Investigation  Director  William 

I  have  attached  a  copy  of  the  Special  Governors'  Work  Session  proceedings  which 
fully  explains  the  activities  in  which  the  Governors  have  been  involved  regarding  the 
problem  of  illegal  drug  trafficking. 

The  National  Governors'  Association  unanimously  adopted  a  policy  calling  for  a 
comprehensive  approach  to  reduce  the  availability  of  illegal  drugs  and  the  adverse 
effects  of  drug  abuse  in  society.   This  approach  must  include  international  cooperation, 
drug  law  enforcement,  education  and  prevention,  detoxification  and  treatment,  and 
research.    We  feel  that  a  sound  policy  to  combat  drug  abuse  and  trafficking  must  address 
the  following  concerns: 

Need  for  Increased  Educational  Effort:    There  must  be  consistent  exchange 
of  information  and  ideas  among  the  various  disciplines  that  can  have  an 
impact  on  consumer  demand.    The  ultimate  long  term  success  of  drug  control 
efforts  is  not  possible  without  a  marriage  of  these  disciplines,  supported  by 
an  educated  and  involved  public.    Therefore  each  state  should  consider  the 
establishment  of  a  Blue  Ribbon  Statewide  Drug  Education  Commission 
involving  leaders  from  the  public  and  private  sectors. 

Need  for  Intensified  Eradication  and  Interdiction:    Military/Naval  Assistance 
to  State/Local  Governments:    The  federal  government  has  exclusive 
responsibility  for  coordinating  interdiction  of  drug  shipments  from  foreign 
countries  and  assisting  those  countries  in  the  eradication  of  drugs  at  the 
source.    This  should  be  a  top  priority  of  the  federal  government.    Also,  the 
Administration  is  urged  to  expand  the  role  of  the  military  forces  of  the 
United  States  in  air  and  sea  interdiction  efforts.    This  role  should  include  all 
regions  of  the  country,  and  should  represent  a  more  significant  effort  than 
presently  exists. 

Need  for  a  National  Reaction:    We  must  show  that  this  is  a  very  serious 
effort  to  combat  drug  abuse  and  trafficking  in  this  nation.   Over  the  past 


decade,  numerous  states  have  been  adversely  affected  by  the  growing  drug 
problem.    These  states  have  taken  independent  steps  to  combat  the  problem; 
however,  their  resource  limitations  and  geographic  restrictions  have 
hindered  their  effectiveness.    The  federal  government,  realizing  the  national 
ramifications  of  the  drug  problem,  has  conducted  several  significant 
operations  which  have  lessened  these  restrictions  and  limitations,  such  as  the 
recent  Bush  Task  Force  in  South  Florida  and  the  creation  of  12  regional  task 
forces.    The  nation's  Governors  appreciate  this  effort  and  encourage  the 
federal  government  to  maintain  on  a  permanent  basis  the  federal  resources 
associated  with  this  effort. 

o  Need  for  a  Centralized  Information  and  Intelligence  Data  Base:   Law 

enforcement  agencies  involved  in  drug  control  have  historically  been 
hampered  by  lack  of  accessible  and  assessable  intelligence  information 
relating  to  illegal  trafficking.    A  centralized  system  to  receive,  analyze  and 
disseminate  information  among  state  and  local  law  enforcement  agencies 
must  exist  if  proactive,  non-duplicative  and  significant  targeting  efforts  are 
to  occur.    Such  a  system  must  interact  with  similar  systems  in  other  states 
and  the  federal  government. 

o  Need  for  Concerted  Street  Enforcement  Activity:    Local  law  enforcement 

agencies  must  provide  the  immediate  response  to  a  variety  of  community 
demands  in  crime  control.    It  is  difficult  for  those  agencies  to  dedicate 
already  strained  resources  to  provocative  drug  prevention  and  enforcement 
problems.    Governors  and  legislators  of  the  various  states  should  apply 
maximum  support  and  effort  toward  increasing  resources  (personnel  and 
equipment)  of  local  law  enforcement  agencies. 

o  Need  for  Standard  Legislation:    There  exists  a  great  deal  of  disparity  among 

the  states'  drug  laws.    There  is  evidence  that  smuggling  organizations  have 
taken  advantage  of  some  states'  deficiencies  in  legal  recourse  and 
probabilities  of  detection,  apprehension  and  prosecution.    Therefore,  each 
state  should  establish  a  legislative  committee  of  prosecutive,  enforcement, 
judicial  and  legislative  members  to  examine  and  develop  a  comprehensive 
system  of  model  and  uniform  laws  dealing  with  the  drug  problem.    Also,  a 
national  committee  should  be  created,  reporting  to  the  National  Governors' 
Association's  Committee  on  Criminal  Dustice  and  Public  Protection.   This 
committee  will  develop  a  comprehensive  system  of  model  and  uniform  laws 
dealing  with  the  drug  issue. 

o  Need  for  Greater  Prosecutorial  Commitment:    Heavy  court  dockets  and 

broad  responsibilities  minimize  prosecutors'  effectiveness  in  dedicating 
resources  to  the  prosecution  of  major  drug  smuggling  operations. 
Alternative  approaches  to  drug  prosecution  and  greater  levels  of 
coordination  among  circuits  dealing  with  multi-jurisdictional  organizations 
are  needed.    Prosecutors  should  take  steps  to  expedite  drug  enforcement 
cases,  as  has  been  successfully  accomplished  in  cases  involving  career 
criminals.    Additional  prosecutorial  resources  are  needed  to  provide  for 
dedication  to  prosecution  of  highly  financed  and  well  defended  drug 

o  Need  for  Coordination  of  Efforts  of  Local  Agencies:    There  is  generally  no 

mechanism  to  provide  for  local/state  agencies  to  pool  their  resources  and 
work  together  on  common  drug  targets.    Equipped  with  the  necessary 
legislation,  agencies  can  draft  contractual  agreements  to  effect  "joint  force 
operations"  or  "mutual  aid  pacts"  to  expand  resource  and  jurisdictional 
abilities  to  attack  drug  operatives.   States  should  consider  developing  the 
necessary  legislation  for  a  "mutual  aid  system,"  whereby  law  enforcement 
agencies  can  contractually  join  together  and  pool  their  knowledge,  resources 
and  skills  toward  investigatively  attacking  drug  smuggling  networks. 

Addressing  these  concerns  will  help  us  get  a  handle  on  the  illicit  drug  problem  in 

this  nation.    Some  of  these  concerns  are  of  a  state  and  local  nature  and  many  of  our 

states  are  dealing  with  this  issue,  as  1  explained  ur>der  the  forfeiture  reform  section  of 


this  testimony.    However,  there  are  some  concerns  that  are  federal  in  nature  and  must  be 
addressed  by  the  federal  government,  e.g.,  interdicting  illegal  drugs  on  high  seas  and  at 
border  points,  and  dealing  with  major  source  countries. 


The  federal  government's  role  in  crime  control  lies  in  the  areas  of  leadership, 
research,  technical  assistance,  and  training  and  coordination  of  the  federal  and  state 
interests.   It  has  a  special  responsibility,  however,  to  develop  and  test  alternative 
methods  of  improving  the  criminal  justice  system  and  to  adequately  support  research  on 
criminal  justice  problems  identified  by  state  and  local  governments.    The  federal 
government  can  further  provide  leadership  by  funding  mooe.  pngrams  in  criminal  justice 
and  law  enforcement  at  the  state  and  local  levels. 

Research  and  evaluation  efforts  that  are  most  likely  to  be  of  immediate  use  to 
state  and  local  criminal  justice  agencies  should  be  given  the  highest  priority  by  the 
federal  government.    The  National  Governors'  Association  recognizes  the  importance  of 
coordination  among  federal,  state  and  local  governments  in  dealing  with  the  crime 
problem.    Therefore,  state  and  local  criminal  justice  practitioners  should  be  involved  in 
the  research  effort  and  in  the  implementation  of  its  results. 

Title  VIII  of  S.829  contains  a  $90  million  justice  assistance  program  providing 
block  and  discretionary  grant  programs  to  states  and  localities.    Several  other  justice 
assistance  proposals  have  been  introduced  in  this  session  of  Congress  including  S.53 
sponsored  by  Senator  Arlen  Specter  and  H.R.2175  sponsored  by  Rep.  William  3.  Hughes. 
In  addition  to  direct  financial  assistance  to  states  and  localities,  these  proposals,  like 
S.829,  reauthorize  the  National  Institute  of  Justice  and  the  Bureau  of  Justice  Statistics 
which  provide  the  critical  criminal  justice  research  and  statistical  functions  at  the 
federal  level. 

Our  support  for  justice  assistance,  whether  financial  or  research  and  statistical,  is 
predicated  on  the  principles  of  federalism,  specifically  that  it  should  be  provided  through 
and  in  cooperation  with  the  states,  to  insure  proper  coordination  of  federal,  state  and 
local  resources.   We  have  learned  and  now  know  only  too  well,  that  targeting  limited 
resources  for  the  purposes  of  replicating  successful  programs  from  one  state  and 
community  to  another  is  the  best  method  for  implementing  change.   To  do  this 
appropriately,  we  need  to  focus  our  coordinated  efforts  on  projects  that  work. 

As  Governor  of  Virginia,  it  is  my  vi»w  that  this  title  could  provide  valuable 


financial  and  technical  assistance  to  the  states  and  their  localities  in  the  fostering  of 
innprovements  and  innovations  in  the  criminal  justice  system.    Implementation  of  the 
block  grant  concept  of  federal  financial  assistance  provides  federal  recognition  of  the 
important  role  of  state  and  local  governments  in  criminal  justice. 


There  are  approximately  39  states  and  territories  either  under  direct  court  order 
or  involved  in  pending  litigation  regarding  prison  population  overcrowding  and/or  general 
conditions.    Most  of  the  states  are  in  need  of  nev.  bed-space  to  house  prisoners.    As  of 
1978,  there  existed  a  shortage  of  over  6S,000  prison  bed-spaces.    While  states  are 
attempting  to  deal  with  this  problem  by  increasing  construction,  the  need  for  available 
property  would  relieve  some  of  the  burden  placed  on  states,  especially  some  capital  cost. 

According  to  the  Bureau  of  Justice  Statistics,  the  prison  population  continues  to 
increase.    From  several  scholarly  estimates  on  prison  population  predictions,  we  can 
expect  a  continued  increase  through  1990.    At  the  end  of  1982  there  were  'tl2,303 
inmates  in  federal  and  state  prisons,  which  represented  an  annual  increase  of  almost 
43,000  inmates,  and  was  the  highest  in  any  year  since  data  became  available  in  1923. 

In  recent  years,  37  states  passed  mandatory  sentencing  laws  and  several  others 
enacted  determinate  sentencing  statutes.    This  development  has  caused  prison 
overcrowding  to  reach  crisis  proportions.   Indeed  federal  judges  have  in  several  instances 
ordered  the  release  of  prisoners  short  of  their  prescribed  sentences. 

Therefore,  the  National  Governors'  Association  supports  the  donation  of  surplus 
federal  property  to  state  and  local  governments  for  urgently  needed  prison  space. 


Mr.  Chairman,  the  problem  of  crime  in  this  nation  is  critical.   We  must  act  in  the 
name  of  our  domestic  defense.  Our  national  constitution  states  emphatically  that  "a 
more  perfect  Union"  was  formed  to  insure  domestic  tranquility.   However,  many  of  the 
nation's  citizens  do  not  live  in  peace,  but  in  fear,  fear  of  being  robbed  or  raped  if  they 
venture  out  in  their  own  neighberheed*. 

The  National  Governors*  AaaocUtion  intends  to  work  more  closely  with  the 
Congress  and  the  Administration  in  waging  this  battle  against  crime,  and  promoting 
peace  in  our  communities. 
Thank  you. 


Illegal  Drug  Trafficking 
In  the  United  States 

Special  Governors'  Work  Session 
February  27,  1983 
Washington,  D.C. 

Sponsored  by 

The  National  Governors'  Association 

Committee  on  Criminal  Justice  and  Public  Protection 

Governor  Charles  S.  Robb,  Chairman 


Illegal  drug  trafficking  represents  a  root  cause  of  many  of  this  country's  most 
serious  domestic  ills.  The  rate  of  violent  crime  remains  near  an  ail-time  high  level.  Data 
developed  by  the  Bureau  of  Justice  Statistics  indicate  half  of  all  inmates  housed  in  our 
overcrowded  prisons  were  regular  drug  users  during  their  criminal  careers.  Recent 
research  has  shown  that  drug-addicted  criminals  are  particularly  violent,  repeat  offenders, 
and  that  a  significant  proportion  of  all  serious  crimes  are  committed  by  a  small  core  of 
repeated  offenders,  many  of  whom  are  addicts. 

In  addition  to  cold  crime  statistics,  however,  there  is  a  terrible  human  toll 
associated  with  drug  abuse.  The  National  Institute  of  Drug  Abuse  has  projected  that  tens 
of  thousands  of  heroin  and  cocaine  users  may  suffer  drug  overdoses  this  year. 

The  economics  of  the  drug  trade  are  staggering.  Trafficking  is  estimated  to  be  an 
$80  billion  per  year  underground  enterprise  operated  by  a  variety  of  organized  criminal 
elements.  Trafficking  threatens  the  nation's  economy  and  undermines  its  governmental 

In  light  of  these  grim  statistics,  the  Administration,  the  National  Governors' 
Association,  and  the  National  Criminal  Justice  Association  have  developed  a  special 
Governors'  Project  as  part  of  an  overall  national  assault  on  organized  crime  and  drug 
trafficking.  The  project,  and  the  role  of  the  states  in  addressing  drugs  as  a  national 
priority,  were  the  themes  of  a  special  symposium  held  February  27,  1983,  in  conjunction 
with  the  mid-winter  meeting  of  the  National  Governors'  Association  in  Washington,  D.C. 
The  program  featured  top  Administration  law  enforcement  officials  and  Governors  who 
have  taken  lead  roles  in  the  areas  of  criminal  justice  and  public  protection. 

The  Governors'  Project  is  an  important  commitment  to  federal-state  cooperation 
and  coordination  in  addressing  the  pressing  problems  of  organized  crime  and  drug 
trafficking.  The  special  session  represented  both  the  culmination  of  a  lengthy  series  of 
planning  and  organizational  steps,  as  well  as  the  beginning  of  a  substantive  program 
designed  to  streamline  and  improve  the  way  all  levels  of  government  address  the  drug 

The  project  is  already  bearing  fruit.  The  participation  of  Attorney  General  William 
French  Smith  and  FBI  Director  William  Webster  in  the  special  session  was  the  first  of 
what  will  be  twice-yearly  meetings  between  top  Administration  officials  and  the 
Governors,  to  discuss  policy  issues  of  mutual  concern  relating  to  drug  trafficking  and 
organized  crime. 

At  the  operations  level,  a  group  of  leading  state  drug  enforcement  program  experts 
has  been  selected  to  meet  on  an  as-needed  basis  with  top  federal  operations  officials  in 
Washington.  Meetings  have  already  taken  place.  Future  gatherings  will  guarantee  that 
the  states  are  fully  aware  of  federal  organized  crime  and  drug  trafficking  strategies,  and 
that  the  Administration  benefits  from  the  Input  of  knowlcdfaable  state  law  enforcement 


A  third  level  of  cooperation  and  coordination  between  the  federal  program  and  the 
states  will  soon  be  established  in  each  of  the  12  federal  core  cities.  Governors  will  be 
encouraged  to  select  lead  state  drug  enforcement  coordinators  to  meet  regularly  with 
federal  leaders  in  the  appropriate  centers  of  regional  task  force  operations.  In  this  way, 
states  and  their  Governors  will  have  direct  access  to  those  federal  efforts  and  decision- 
makers most  directly  affecting  them  on  a  day-to-day  basis. 

Finally,  the  National  Criminal  Justice  Association,  on  behalf  of  the  National 
Governors'  Association,  has  begun  an  effort  to  develop  new  resources  that  will  enable 
individual  states  to  reform  and  improve  their  drug  laws.  The  product  of  this  effort  will  be 
guidance  materials  for  Governors  and  state  legislatures  outlining  what  already  exists  at 
the  state  level  to  address  organized  crime  and  drug  trafficking,  and  things  states  should 
do  to  improve  and  expand  their  programs  to  make  them  more  effective. 

The  Governors'  Project  is  the  lynchpin  to  improve  on-going  relationships  between 
various  levels  of  federal  and  state  law  enforcement  officials.  It  has  generated  a  number 
of  new  ideas  which  will  serve  to  improve  the  nation's  ability  to  address  organized  crime 
and  drug  trafficking. 

Early  proof  of  this  is  a  White  House  announcement  March  23  that  Vice  President 
George  Bush  will  head  a  newly  formed  National  Narcotics  Border  Interdiction  System 
program  to  coordinate  the  work  of  federal  agencies  involved  in  the  interdiction  of 
imported  narcotics  and  drugs.  Creation  of  NNBIS  implements  the  Governors'  recom- 
mendation that  the  federal  government  take  exclusive  responsibility  for  coordinating 
interdiction  of  drug  shipments  from  foreign  source  countries. 




The  following  is  a  chronological  outline  of  developments  regarding  the  drug  issue. 

•  3uly  2?^,  1982  -  The  Southern  Governors'  Association  meeting  placed  illegal  drug 
trafficking  as  a  priority  issue  and  called  for  a  special  meeting  among  the 
southern  states. 




August  8,  1982  -  Governor  Clements  of  Texas  discussed  the  drug  abuse  problem 
before  the  Governors  at  their  annual  meeting  in  Oklahoma.  NGA  approved  the 
policy  entitled  "Controlling  Illegal  Traffic  in  Narcotics." 

August  13-30,  1982  -  A  survey  of  Committee  Governors  identified  drug 
trafficking,  prison  overcrowding  and  sentencing  as  priority  problems. 

September  13,  1982  -  The  Southern  Governors  met  in  Tennessee  on  the  drug 
trafficking  problem.   A  policy  outline  was  developed. 

October  2,  1982  —  The  President  announced  his  comprehensive  drug  program  on 
his  weekly  radio  program. 

•       October  5,  1982  -  The  President  officially  released  his  comprehensive  program 
to  combat  drug  abuse  and  trafficking. 





October  ji*^  1982  -  The  Department  of  Justice  released  its  fact  sheet  on  the 
President's  initiative  to  combat  drug  trafficking  and  orgcinized  crime-  the  law 
enforcement  section  of  the  comprehensive  program.  The  Governors'  Project 
was  announced  in  this  package. 

November  12,  1982  -  Governor  Robb  initiated  the  Ad  Hoc  Drug  Working  Group 
(NGA/NC3A)  and  discussed  the  Committee  agenda  with  the  NGA  Executive 
Committee  in  Park  City,  Utah. 

November  18,  1982  -  Ad  Hoc  Drug  Working  Group  met  to  define  the  Governors' 
Project  referred  to  on  October  U,  1982. 

December  13,  1982  -  The  Staff  Advisory  Council  met  and  approved  the  Ad  Hoc 
recommendations  for  the  Governors'  Project. 


January  6,  1983  -  Governor  Robb  wet  with  Attorney  General  William  French 
Smith  to  discuss  the  Governors'  Project. 

January  13,  1983  -  The  NGA/NC3A  Ad  Hoc  Drug  Working  Group  met  to  further 
refine  the  drug  policy  recommendations  as  developed  by  Governor  Bob  Graham's 
staff.  The  first  federal/state  drug  enforcement  operations  meeting  was  held  at 
the  Department  of  Justice, 

February  27,  1983  -  NGA  work  session  on  the  Illegal  Drug  Problem  in  America. 

February  28,  1983  -  The  Committee  recommended  and  approved  drug  policy. 

March  1,  1983  -  NGA  approved  new  drug  policy. 

"Illegal  Drug  Trafficking  in  the  United  States" 

Presentation  of 

Governor  Charles  S.  Robb 

Commonwealth  of  Virginia 


National  Governors'  Association 

Committee  on  Criminal  Justice  and  Public  Protection 

February  27,  1983 

Thank  you  for  coming.  Sunday  mornings  are  usually  reserved  for  less  arduous 
exercises.  For  those  of  you  accustomed  to  sermons  at  this  hour,  I  hope  that  you  won't  feel 
that  this  program  has  in  any  way  fulfilled  that  obligation. 

Preachers  and  politicians  do  have  a  lot  in  common  though.  We  have  all  the  right 
answers  unfortunately,  people  keep  changing  the  questions. 

We  generally  have  more  questions  than  answers  however,  to  what  has  become  one  of 
the  most  vexing  problems  in  America  —  drug  trafficking  and  abuse.   Questions  like: 

•  What  actions  are  necessary  to  regain  control  of  our  borders  and  reduce  the  flow 
of  drugs  into  the  country  and  through  our  states; 

•  What  continuation  of  events  and  programs  are  needed  to  restrict  production  at 
the  source  and  cut  the  supply  lines; 

•  Which  steps  can  be  taken  to  eliminate  demand; 
And  finally, 

•  What  has  changed  about  the  drug  problem  (in  addition  to  the  press  coverage) 
that  prompted  this  Sunday  morning  session? 

In  answer  to  the  last  questions,  the  principal  change  is  not  that  drugs  are  any  more 
deadly  —  although  drug  related  deaths  are  steadily  rising  —  but  that  the  dimension  of  the 
problem  has  grown  to  critical  proportion. 

I  would  like  to  try  to  set  the  stage  for  our  discussion  — 

•  The  Drug  Enforcement  Administration  estimates  that  in  1980  alone,  more  than 
4.3  metric  tons  of  heroin  were  imported  to  the  U.S. 

•  Between  t^O-i^&  metric  tons  of  cocaine  were  imported  into  the  U.S.  that  same 
year  which  represented  a  57%  increase  between  1979  and  1980. 

•  DEA  statistics  show  that  an  estimated  25  million  Americans  are  currently  users 
of  marihuana. 

As  each  Governor  here  today  is  only  too  well  aware,  the  illegal  drug  trade  in  the 


U.S.  is  a  multi-bilUon-dollar  business.  In  fact  current  sales  are  estimated  to  be  in  excess 
of  $80  billion.  To  put  that  in  the  most  graphic  perspective,  consider  for  a  moment  that 
the  $80  billion  figure  is  more  than  the  combined  annual  profits  of  the  Fortune  100 
companies;  and  one-half  the  combined  budgets  of  all  of  our  50  states. 

In  short,  while  bankruptcies  threaten  the  future  of  historically  sound  industries, 
business  is  booming  in  the  drug  trade.  Sales  were  up  an  estimated  50%  from  1977,  while 
seizures,  during  fiscal  years  1977-81,  comprised  less  than  10%  of  the  estimated  supply  of 
cocaine,  heroin  and  other  dangerous  drugs. 

The  stimulative  effect  on  other  crime  is  immediate.  Data  from  the  FBI  show  that 
one  family  in  three  will  be  the  victim  of  serious  crime  this  year. ..50%  of  those  individuals 
who  are  now  in  prison  used  drugs  a  month  prior  to  the  offense  for  which  they  are 
incarcerated.  There  is  a  clear  link  between  trafficking  in  illegal  drugs  and  the  growth  of 
serious  crime  in  our  streets,  in  our  communities,  in  our  homes. 

The  problems  drug-related  crimes  create  for  law  enforcement  officials  are  multiple. 
There  are  too  many  drug  deals  and  too  few  police,  too  much  shore  line  and  too  few 
patrols.  There  are  too  many  cases  and  too  few  prosecutors  for  too  many  felons  and  too 
few  prison  cells. 

The  ultimate  concern,  however,  goes  beyond  the  economic  impact  and  the  law 
enforcement  burden;  it  involves  the  price  we  are  paying  as  a  society.  In  the  first  nine 
months  of  1982,  almost  10,000  people  suffering  heroin  overdoses  were  admitted  to 
emergency  rooms  in  820  hospitals  in  our  major  metropolitcin  areas.  During  the  same  six 
months,  those  same  facilities  treated  more  than  1^,500  people  suffering  from  cocaine 
overdoses  —  more  than  the  total  number  of  such  cases  for  all  of  1981. 

And  we  still  do  not  know  the  full  effect  that  today's  most  common  drugs  will  have 
on  future  generations.  But  the  effect  they  have  had  on  our  present  generation  should  be 
sufficiently  disturbing  to  prompt  us  to  act  without  delay. 

Obviously  our  individual  states  have  a  major  stake  in  size  and  type  of  law 
enforcement  effort  designed  to  reduce  drug  trafficking.  As  we  know  when  a  coordinated 
drug  crackdown  takes  place  in  Florida  or  Texas,  we  see  an  immediate  increase  in  drug 
drops  in  Tidewater,  Virginia  or  rural  Tennessee  and  in  each  of  your  states  —  creating  a 
"trickle  up"  situation  if  you  will.  Simply  put,  when  the  tap  is  turned  off  in  one  region,  the 
pipeline  pours  the  problem  out  into  another  region  —  many  of  which  are  poorly  equipped  to 
deal  with  the  problem  on  a  large  scale. 

As  Governors  we  realize  that  the  drug  problem  is  not  confined  to  state  boundaries 
and  it  does  not  recognize  territorial  borders.  It  is  a  problem  with  state,  national  and 
international  implications  and  it  is  going  to  require  a  great  deal  of  cooperation  if  we  hope 
to  make  auiy  permanent  headway  in  solving  it. 

At  every  level,  we  have  begun  to  put  in  place  some  of  the  necessary  initiatives  to 
deal  with  the  problem. 

♦  The  Southern  Governors'  Association  met  last  summer  and  began  a  coordinated 
initiative  which  has  led  to  policy  recommendations  every  state  can  utilize  if 
they  chose  to. 

•  I  appointed  an  ad  hoc  committee  of  operations  experts  and  policymakers  last 
fall  to  work  with  this  committee  on  the  drug  issue. 

*  President  Reagan  announced  an  eight-point  law  enforcement  initiative  in 
October  which  included  a  special  Governors'  Project. 

♦  In  January,  I  met  with  Attorney  General  Smith  who  we  will  hear  from  in  just  a 
minute  to  discuss  the  Governors'  Project  and  the  concept  of  federal-state-local 

This  last  item,  the  Governors'  Project,  which  brings  us  here  this  morning  is  an 
example  of  what  could  be  a  much  more  coordinated  approach,  that  I  believe  is  essential. 
The  project  emphasizes  the  development  of  new  and  improved  tools  to  attack  the  drug 
problem,  the  cteation  and  implementation  of  new  policies,  and  stronger  coordination 
among  various  levels  and  branches  of  government. 


Improved  tools;  As  for  improved  tools,  the  states  need  better  laws  to  address  the 
trafficking  problem  effectively.  The  Governors'  Project  is  expected  to  develop 
guidelines  to  help  the  states  build  these  tools.  We  need  to  reform  our  bail  laws  so 
that  known  traffickers  cannot  walk  the  streets;  we  need  to  strengthen  forfeiture 
statutes  so  that  the  costs  of  trafficking  are  substantially  increased;  we  need  to 
impose  tougher  sanctions  on  those  convicted  of  serious  drug  offenses;  and  we  need 
to  improve  laws  permitting  cooperation  with  the  military,  particularly  in  coastal  and 
border  areas  where  international  trafficking  is  a  serious  problem. 

Innovative  policies;  In  the  area  of  innovative  policies,  individual  states  will 
obviously  benefit  from  a  package  of  balanced,  flexible  policies  which  can  be  tailored 
to  the  needs  of  each.  Bob  Graham  has  led  an  effort  to  produce  such  a  package,  and 
he  will  address  his  recommendations  this  morning. 

Coordination;  The  final  and  critical  part  of  the  Governors'  Project  is  better 
coordination.  A  major  complication  in  drug  cases  is  balancing  the  requirements  of 
undercover  operations  with  the  need  to  inform  other  law  enforcement  officials  of 
these  activities.  When  communication  lines  break  down  the  result  is  often  cops 
arresting  cops.  As  the  Governors'  Project  is  envisioned,  the  various  levels  and 
branches  of  government  will  work  more  closely  together.  Top  Administration 
officials  will  meet  twice  yearly  with  the  Governors  at  our  annual  meeting;  experts 
from  the  states  will  meet  regularly  with  and  contribute  their  ideas  to  lead 
operational  officials  in  Washington;  and  representatives  of  individual  Governors  will 
have  regular  access  to  enforcement  and  prosecution  teams  implementing  the  12 
regional  anti-drug  task  forces. 

In  conclusion,  the  purpose  of  the  symposium  is  to  explore  these  state,  interstate  and 
international  strategies  and  to  identify  ways  in  which  our  various  levels  of  government 
can  not  only  join  the  battle,  but  join  forces  in  waging  the  war  on  drugs. 

Attorney  General  William  French  Smith  and  Judge  William  Webster  have  been  the 
architects  and  engineers  of  the  newly  inaugurated  national  program  to  combat  drug 
trafficking  and  organized  crime  and  they  are  here  today  to  discuss  with  us  the  progress 
made  in  putting  that  program  in  place. 

After  we  have  heard  from  them,  we  will  have  the  opportunity  to  hear  from  three 
Governors  whose  states  have  taken  major  initiatives  to  deal  with  the  drug  trade  in  their 

Remarks  of 

The  Honorable  William  French  Smith 

Attorney  General  of  the  United  States 

February  27,  1983 

As  Governor  Robb  has  said,  last  October  the  President  announced  a  major. ..initiative 
directed  against  the  drug  trafficking  problem  and  organized  crime.  That  was  an  eight- 
point  program  and  one  of  those  points... was  a  Governors'  Project  designed  to  enlist  the 
aide  and  support. ..of  the  various  states.  We're  going  to  discuss  a  iittle  later  the  specifics 
of  the  Governors'  Project  from  our  vantage  point. 

I  would  like  at  this  point  to  introduce  my  colleagues  who  are  here  with  me: 
Jonathan  Rose,  the  Assistant  Attorney  General  in  charge  of  the  Office  of  Legal  Policy,  has 
direct  responsibility  for  the  Governors'  Project.  And  working  with  him  is  Ed  McNally. 
Also  here  to  respond  in  connection  with  the  12  task  forces  that  are  a  central  part  of  that 
program  is  Rudy  Giuliani,  the  Associate  Attorney  General. 

I  thought  that  before  calling  on  3on  Rose  for  specifics  on  the  Governors'  Project,  that 
I  would  give  you  a  little  background  as  to  how  we  happen  to  be  here  this  morning  at  this 
time  with  respect  to  this  program.  One  of  the  first  things  that  we  did  when  we  came  into 
office  was  to  appoint  the  Attorney  General's  Task  Force  on  Violent  Crime,  co-chaired  by 
former  Attorney  General  Griffin  Bell  and  your  colleague,  Jim  Thompson  of  Illinois. 

That  task  force  produced  6'f  very  excellent  recommendations. ..One  of  them  was  that 
the  U.S.  attorneys,  all  9^*  of  them,  be  directed  to  take  the  leadership.  establish 
cooperative   relationships   with   state    and   local   law   enforcement   officials.      We    have 


implemented  that  program  and  as  a  result  of  that  have  been  able  to  bring  together  a  fine 
resource  of  federal,  state  and  local  law  enforcement  efforts  and  to  develop  priorities 
based  upon  the  needs  of  those  9'*  districts,  which  of  course  will  vary  from  time  to  time; 
the  resources  will  vary;  the  priorities  will  vary. 

But  it  certainly  is  of  interest  that  every  single  one  of  those  districts  -  designated 
drugs,  and  particularly  in  connection  with  organized  crime,  as  being  the  number  one 
priority;  all  except  one.  Now,  that  one  has  also  reported  its  priorities  and  has  determined 
that  drugs  there,  too,  is  the  number  one  problem.  That  makes  it  unanimous.  There  is  no 
question  about  the  fact  that  drugs  are  the  number  one  problem  in  the  criminal  area  in  the 

Here  in  Washington,  from  an  organizational  standpoint,  we  established  for  the  first 
time.  interagency  cabinet-level  group  to  coordinate  drug  enforcement.  We  also 
reorganized  the  Drug  Enforcement  Administration  itself,  particularly  at  the  top,  to  make 
it  a  tougher  organization.  And  most  significantly  of  all,  we  consolidated  the  Drug 
Enforcement  Administration  into  the  FBI  to  bring  for  the  first  time  the  nation's  leading 
law  enforcement  agency  into  contact  with  the  nation's  number  one  crime  problem. 

In  addition  to  that,  we  also  have  taken  steps  to  achieve  changes  in  legislation  and 
federal  law.  We  sought  and  were  able  to  obtain  from  Congress  an  amendment  to  the 
Posse  Comitatus  statute  which,  again  for  the  first  time,  permits  the  use  of  intelligence- 
gathering  capabilities  and  resources  of  the  armed  forces  in  the  battle  against  drugs. 

That  was  a  major  change.  That  intelligence  that  we  are  now  using  has  been 
invaluable,  to  say  nothing  about  the  resources  that  we  are  also  able  to  utilize  m  this 
battle.  Other  changes,  such  as  the  repeal  of  the  Percy  Amendment,  which  now  permits 
Paraquat  to  be  used  against  marijuana  in  source  countries,  has  been  very  successful. 
Other  changes  we  have  sought  but  we  have  not  achieved  as  for  now,  changes  such  as 
Governor  Robb  referred  to  dealing  with  bail  reform,  sentencing  and  a  variety  of  other 
changes  we  think  are  badly  needed;  we  will  introduce  very  shortly  an  omnibus  crime 
package  which  contains  these  and  other  changes... 

We  also,  for  the  first  time  —  recognizing  that  South  Florida  as  a  key  point  in  the  drug 
trafficking  area  —  organized,  under  the  aegis  of  the  vice  president,  what  has  become 
known  as  the  South  Florida  Task  Force.  This  involved  bringing  under  one  entity  the 
various  agencies  of  the  federal  government  dealing  with  drugs  and  drug  trafficking, 
including  for  example,  obviously  the  FBI  and  DEA,  Customs,  the  Department  of 
Transportation's  Coast  Guard,  the  IRS,  the  ATF,  the  Department  of  Defense  in  certain 
areas.  And  so  that  again,  for  the  first  time,  under  a  single  umbrella,  we  have  brought 
together  in  a  directed  effort  an  organization  to  deal  with  that  problem  in  South  Florida. 

By  every  measure,  the  South  Florida  Task  Force  has  been  a  great  success.  However, 
its  very  success  created  two  additional  problems.  First,  in  order  to  gather  that  group,  we 
had  to  pull  law  enforcement  personnel  from  other  parts  of  the  country.  Investigators, 
prosecutors,  even  judges.  Prison  space. ..created  a  problem.  So  that,  to  that  extent,  the 
South  Florida  Task  Force  has  created  certain  problems  in  other  parts  of  the  country. 

We  created  a  second  problem. ..with  respect  to  the  South  Florida  Task  Force. ..Drug 
traffickers  finding  it  more  difficult  to  do  business  there,  went  elsewhere.  Those  two 
problems,  together  with  other  considerations,  were  responsible  for  the  development  of  the 
program  which  the  President  announced  last  October. 

One  of  the  principal  elements  of  that  program  was  the  creation  of  12  new  task 
forces  based  upon  the  experiences  of  the  South  Florida  Task  Force,  around  the  country. 
They  are  not  the  same  as  the  South  Florida  Task  Force,  but  they  are  similar  and  based 
upon  that  experience. 

Those  task  forces  are  now  in  the  process  of  being  implemented.  We  expect  that  by 
summer  they  will  be  in  full  operation. 

Other  aspects  of  this  program  are  certainly  important  as  well.  We  are  going  to 
appoint  a  commission  on  organized  crime  to  focus  further  attention  on  this  problem. 
That's  along  the  lines  of  the  Kefauver  Commission. ..Other  programs  include  a  cabinet- 
level  committee,  an  annual  report  by  the  Attorney  General  to  focus  attention  on  this 
problem...and  of  course  additional  resources.  But  certainly  critical  to  this  overall 
program  is  the  relationship  between  the  federal  authorities  which  will  be  responsible  for 


these   programs   and   the   states.     And,  of  course  that  is  the  genesis  of  the  Governors' 
Project  that  we  are  talking  about  today. 

I  want  to  say  that  I've  already  met  with  Governor  Robb,  chairman  of  your 
committee  in  this  area.  We  are  most  appreciative  and  gratified  for  the  enthusiasm  and 
support  that  we  have  seen  for  this  program  so  far.  We  want  to  do  everything  we  can  do  to 
involve  the  states  fully  in  this  effort.  It  certainly  is  a  problem  that  we  alJ  have  to  be 
concerned  about.... 

So  with  that  as  the  background... I  would  like  3on  Rose,  who  has  responsibility  for  the 
Governors'  Project,  to  briefly  outline  what  we  have  in  mind  ahead. 

Remarks  of 

The  Honorable  Jonathan  Rose 

Assistant  Attorney  General  for  Legal  Policy 

February  27,  1983 

We  have  begun  our  efforts  to  work  with  you,  recognizing  the  limitations  put  upon  us 
both  by  the  fact  that  this  is  not  only  a  state  and  local  problem,  which  you  fully  recognize, 
but  it  has  a  very  important  federal  dimension  because  of  its  interstate  and  international 
aspects.  We  have  tried  to  figure  out  ways  we  could  constructively  work  at  the  most  local 
level,  which  I'll  be  asking  Associate  Attorney  General  Rudy  Giuliani  to  talk  about  in  a 
minute,  at  the  task  force  level  with  the  local  prosecutors,  local  police,  to  try  to  best 
coordinate  our  joint  efforts  toward  this  common  problem. 

Our  role  in  the  Governors'  Project  is  basically  that  of  a  liaison  role  so  that  you  Cc.n 
get  the  kind  of  help  that  you  need  at  the  state  level,  and  at  the  Governors  level  at  the 
head  of  the  state  police  level.  You  have  access  to  the  Justice  Department,  and  the 
Attorney  General,  at  the  highest  level  for  the  kind  of  help  that  you  need. 

We  found,  for  example,  when  we  first  got  into  this  project,  that  there  was  no  one 
place. ..all  of  you  could  turn  to  find  the  various  things  that  were  available  to  you  in  terms 
of  training.  We  have  found  that  law  enforcement  training  is  something  the  federal 
government. ..has  a  long  history  of  ...the  FBI  has  done  it  for  years. ..very  successfully.  And 
yet  there  was  no  one  place  that  a  state  official  could  go  to  find  a  catalog  of  training 
programs  that  were  offered  by  the  federal  government  that  could  be  used  by  the  various 
people  that  they  might  want  to  send. 

We  have  developed  very  recently,  a  catalog  of  law  enforcement  training  programs 
that  are  available  from  the  U.S.  government  for  the  states  and  local  governments.  That's 
one  concrete  step  that  we  have  been  able  to  take  since  the  Attorney  General's  meeting 
with  Governor  Robb. 

The  second  thing  that  we  have  to  thank  you  for  is  the  strong  endorsement  of  the 
President's  program  to  try  to  move  these  task  forces  and  to  try  to  achieve  greater 
coordination  between  the  state  and  local  level,  and  also  your  specific  endorsement  of 
some  of  the  law  enforcement  measures.  We've  had  a  very  terrible  time  trying  to  convince 
Congress  that  all  of  the  tools  were  in  place  at  the  federal  level;  that  we  needed 
legislative  tools  to  combat  the  very  serious  drug  problem  that  we  face.  We  have  terrific 
support  from  virtually  every  Governor  in  convincing  the  Congress  that  without  these  tools, 
they  are  going  to  be  much  less  effective  at  the  state  and  local  level.  Also,  obviously,  if 
these  tools  get  enacted  as  a  matter  of  federal  statute,  they  become.. .examples  for  state 

We  also  hope  to  serve  as  a  channel  of  communication  where  efforts  are  successful  in 
particular  areas  of  the  country.  We  hope  to  communicate  good  ideas,  good  pieces  of 
legislation,  good  projects  from  one  part  of  the  country  to  another  by  way  of  a  newsletter. 
If  you  find  this  useful,  we  hope  you'll  let  us  know  because  we  think  it  could  be  the 
beginning  of  a  nationwide  effort  to  communicate  and  share  good  ideas  in  this  very 
important  field. 

Finally,  I  would  simply  like  to  say  that  Ed  McNaily  on  my  staff  will  be  continually 
available  to  those  on  your  staff  who  have  problems  in  this  area.     Obviously  we  must 


confront  the  fact  that  there  are  certain  coordination  and  operational  problems  that  do 
exist  in  this   field   from   the   standpoint  of   confidentiality,  but  we   would   like  to   try   to 
minimize  those  and  try  to  work  with  you  insofar  as  we  can  to  pool  the  kind  of  resources 
that   we   have.     We  obviously  are   all   incUned   to   budgetary    stringency   and   budgetary 

Remarks  of 

The  Honorable  Rudolph  Giuliani 

Associate  Attorney  General 

February  27,  1983 

The  purpose  of  those  Law  Enforcement  Coordinating  Committees  is  to  brinp, 
together  federal,  state  and  local  law  enforcement  so  that  we  can  plan  together  how  we're 
going  to  use  our  resources.  They've  made  many,  many  contributions  to  our  planning  and 
they  were  a  substantial  contributor  to  the  development  of  the  12  task  forces... 

When  Attorney  General  Smith  became  Attorney  General,  about  two  years  ago,  there 
were  1,800  federal  agents  involved  in  drug  enforcement.  With  the  bringing  in  of  the  FBI 
and    giving   them    jurisdiction    to    do    drug    work,    we   added    approximately   500   to   ^"" 


additional  agents  to  the  effort  against  drugs.  And  with  this  additional  task  force  effort, 
we  will  add  another  1,200.  So  that  in  the  space  of  about  a  year  and  a  half,  you  will  have 
doubled  the  size  of  federal  agents  in  the  field,  able  to  do  and  ready  to  do  drug 
enforcement  work.  That's  a  very,  very  substantial  increase  in  the  number  of  federal 
agents  for  drug  enforcement. 

How  we  use  those  resources  is  really  the  key  to  whether  we  are  going  to  get  the 
impact  that  we  should  be  getting  out  of  that... 

We  would  like  to  work  with  you,  through  the  Law  Enforcement  Coordinating 
Committees,  in  developing. ..the  priorities  of  these  task  forces,  what  kinds  of  cases  they 
should  be  working  on,  how  the  agents  should  be  deployed. 

Each  one  of  the  task  forces  is  located  in  a  core  city.  But  it  is  intended  to  be  a 
flexible  task  force  to  go  where  the  problems  are  greatest.  We  have  no  special  wisdom  in 
determining  that.  Your  state  and  local  law  enforcement  probably  knows  as  much  if  not 
more  about  that  as  we  do. 

Each  one  of  the  task  forces  will  have  local  representation  on  the  planning 
committee,  and  we're  beginning  to  form  them  now... 

Remarks  of 
The  Honorable  William  Webster 


Federal  Bureau  of  Investigation 

February  27,  1983 

I  don't  want  to  overuse  the  term  for  the  first  time,  but  I  do  see,  as  I  finish  5  years  in 
Washington,  a  convergence  of  efforts  and  interest  in  the  drug  problem  from  the  chief  of 
police  of  the  smallest  hamlet  to  the  President  of  the  United  States.  And  1  think  this 
presents  a  unique  opportunity  for  all  of  us  in  government,  and  a  particular  challenge  to 
the  Governors  and  those  of  us  in  federal  law  enforcement,  to  carve  out  of  this  challenge  a 
more  effective  way  of  dealing  with  a  problem  that  touches  each  American  in  his  home,  in 
his  business,  in  the  quality  of  his  life. 

We  have  come  to  the  time  when  the  approach  to  federalism  has  been  making  more 
and  more  sense  to  me.  The  Law  Enforcement  Coordinating  Committees  are  illustrative  of 
the  kind  of  coming  together  that  is  possible  in  our  society  to  bring  all  levels  of 
government  to  bear  on  particular  problems. 

I  recall  my  days  as  a  United  States  Attorney  in  St.  Louis  in  1960,  and  my 
counterpart  in  St.  Louis  was  currently  Serator  Tom  Eagleton  who  was  the  circuit 
attorney.    We  were  good  friends,  we  attended  the  same  college  in  Massachusetts,  and  we 


talked  about  getting  together  and  never  got  together  during  the  entire  time  we  were  in 
office,  to  discuss  problems  of  crime  in  our  community. 

That's  changed  today,  changed  very  significantly.  I  was  out  in  Salt  Lake  City  just  a 
few  weeks  ago  with  a  Law  Enforcement  Coordinating  Committee  meeting  with  every 
federal  agency  present. ..the  state  attorney  general,  a  full  array  of  state  officials,  and 
they  were  well  into  their  problems.  That's  encouraging. ..because  I  see  signs  of  increasing 
ability. ..that  in  the  real  world  we  are  providing  effective  assistance  where  it's  needed... 

This  brings  us  to  the  problem  of  drugs.  I  think  Governor  Robb  made  reference  to  the 
three-pronged  areas  that  need  attention  in  this  area.  The  control  of  sources  —  the 
Attorney  General  has  been  working  for  over  a  year  in  development  of  effective  programs 
to  reduce  the  source  where  it  is.  His  trip  around  the  world  to  some  of  the  major 
producers  of  drugs  and  narcotics  in  the  United  States. ..has  produced  assurances  of 
cooperation  and  in  very  real  instances  of  drug  eradication  programs  there.  More  will  be 

The  amendment  to  the  Posse  Comitatus  Act  permitted  the  military  for  the  first 
time  to  assist  law  enforcement  agencies  in  the  interdiction  effort,  to  stop  the  flow  of 
drugs  at  the  border.  The  use  of  attack  helicopters,  the  availability  of  AWACS...even  the 
assistance  of  the  Navy. ..this  was  an  important  and  significant  development  in  what  we  are 
trying  to  do... 

I  think  we  are  here  this  morning  to  talk  primarily  about  what  the  federal 
government,  the  state  and  local  governments  are  doing  and  can  do  in  the  law  enforcement 
effort.  And,  incidentally,  if  we  were  to  interdict. ..all  of  the  products  coming  into  the 
country  we  would  still  have  a  major  problem  because  we're  growing. ..drugs  in  substantial 
quantities  in  specific  parts  of  our  country  where  it  is  becoming  an  increasingly  imporant 
economic  factor... 

The  Attorney  General  mentioned  the  bringing  together  of  the  FBI  and  the  DEA  to 
provide  a  more  effective  law  enforcement  program.  I'd  like  to  mention  just  a  few  of  the 
things  that  have  happened.  In  3une  1981,  the  Attorney  General  designated  the  Executive 
Assistant  Director  of  the  FBI,  Francis  "Bud"  Mullen,  to  be  Acting  Administrator  of  the  Drug 
Enforcement  Administration  and  tapped  us  to  develop  an  approach  to  a  close  realign- 
ment. The  committee  working  on  that  was  chaired  by  Rudy  Giuliani,  the  Associate 
Attorney  General. 

In  January  a  year  ago,  the  President  announced  a  new  program.  The  Attorney 
General  announced  the  beginning  of  concurrent  jurisdiction  in  drugs.  the  FBI. 
Previously,  our  only  contact  with  drugs  had  been  through  our  organized  crime  enforce- 
ment effort. 

The  Drug  Enforcement  Administration  did  not  lose  any  of  its  machinery.  We  did  cut 
off  the  regional  posts  which  we  felt  were  unnecessary  bureaucracy  and  cutting  down  on 
efficiency.  But  all  of  the  vital  organs  of  the  DEA  remained  in  pface.  A  joint  committee 
worked  out. ..what  the  FBI  would  work  on,  what  DEA  would  work  on,  what  we  would  work 
on  jointly,  how  we  would  share  information,  how  we  would  disseminate  information.  We 
signed  off  on  that  in  March. 

In  the  year  that  the  FBI  has  had  concurrent  jurisdiction,  we  have  developed  over 
1,100  cases;  300  of  which  are  being  operated  jointly  with  the  Drug  Enforcement 
Administration.  These  are  not  street  cases.  This  is  not  an  effort  to  substitute  ourselves 
for  state  and  local  law  enforcement.  It  is  an  effort  to  carry  out  the  mandate  of  the 
Attorney  General  to  attack  the  organized  crime  apparatus  of  cartels,  motorcycle  gangs, 
traditional  organized  crime  families  which  have  now  been  identified  as  heavily  into  drugs 
and  narcotics. 

This  approach,  I  believe,  is  working  very  well. ..If  anything,  there  has  been  increased 
respect  between  DEA  and  FBI  agents  over  their  work,  and  there  has  been  increased 
efforts  on  our  part  to  insure  that  state  and  local  law  enforcement  agencies  are  tuned  in  to 
what  we're  doing,  how  we're  doing  it,  and  to  enlist  their  aid  and  assistance. 

We  have  put  in  place  without  any  additional  resources  500  manyears  of  FBI  effort 
during  the  past  year. 

We   have   been   cross-training  Drug  Enforcement   Administration   agents  with  FBI 


agents.  Over  300  FBI  agents  have  attended  DEA  training  at  Glynco  in  Georgia.  We  have 
worked  out  the  sharing  of  our  laboratories.  The  FBI  has  all  the  forensic  work;  the  DEA 
laboratories  do  all  the  drug  work. 

The  use  of  FBI  accountants,  the  use  of  our  informant  network,  the  assistance  that 
we  are  now  providing  for  electronic  surveillance  —  court-authorized  wiretaps  —  are 
coming  to  bear  in  a  very  significant  way. 

We  have  tripled  the  number  of  important  court-authorized  wiretaps  being  operated 
by  DEA  as  a  result  of  the  availability  of  FBI  expertise  coming  in  to  assist  in  those 
questions.    And  it's  paying  off. 

The  FBI's  emphasis  has  not  changed.  We've  identified  the  role  that  we  think  we  can 
best  play  in  this  effort,  and  that  is  to  go  after,  through  our  investigative  efforts, 
organized  crime  in  drugs,  financial  crime  in  drugs,  and  public  corruption  in  drugs. 

To  do  this,  we  know  we  must  (conform)  our  efforts  with  those  of  other  state 
activities  which  have  been  carrying  this  battle  for  so  long.  It's  important  that  we  be  able 
to  deal  with  street  problems,  but  we  know  if  we're  going  to  reach  beyond  the  streets,  as  it 
is  our  historic  mission  to  do,  we're  going  to  need  all  the  help  and  assistance  of  state  and 
local  police  officers  that  we  can  get.  I  want  to  make  clear  to  you  that  in  the 
disseminating  of  information,  we  are  looking  for  more  and  mor"  effective  ways  to  insure 
that  informatics  is  shared.  It's  tragic  when  an  undercover  operation  by  a  federal  agency 
steps  on  the  shoes  of  an  operation  of  a  state  or  local  agency.  The  drug  task  forces  now 
offer  a  new  means  to  approach  the  problem  on  a  coordinated  basis.  I'd  like  to  emphasize  a 
few  things  as  1  see  them  as  these  task  forces  have  evolved.  There  are  12  regional  task 
forces  plus  the  Miami-South  Florida  task  force  which  also  covers  Puerto  Rico.  Originally, 
there  was  some  thought  about  putting  in  additional  task  forces  in  specific  cities.  Analysis 
showed  that  we  needed  to  cover  and  serve  the  entire  United  States,  and  that's  why  the 
regional  process  evolved. 

We  identified  core  cities  where  we  thought  these  efforts  would  best  serve  as  a 
vehicle  for  management  to  begin.  We  recognized  that  we  did  not  want  another  layer  of 
federal  bureaucracy  operating  within  those  regions,  but  we  did  need  effective  coordina- 
tion. And  we  did  need  new  resources.  Not  just  more  management,  but  new  resources. 
The  addition  of  these  will  almost  double  the  commitment  of  federal  resources  to  the  drug 
effort.  The  Governors'  Project  will  provide.  avenue,  a  conduit  by  which  you  can  make 
your  wishes  and  concerns  felt  in  this  process. 


FBI  Director  Webster  on  Public  Corruption;  I  think  this  is  an  area  that  should  be 
presented  to  the  Governors  for  their  consideration. ..We  have  already  identified. ..the 
tremendous  problem  that  develops  when  large  sums  of  cash  are  made  available  for  payoffs 
and  corrupting  of  our  public  officials.  We  had  a  case  in  Henry  County,  Georgia,  in  which 
the  sheriff,  the  chief  of  police,  the  probate  judge  and  a  manager  at  the  airport  were 
arrested  on  a  conspiracy  to  provide  a  safe  escort  service  for  drug  traffickers  landing  in 
Henry  County  and  being  escorted  into  Atlanta  for  distribution  of  their  drugs.  I  asked  the 
head  of  the  National  Sheriffs  Association  a  little  bit  about  this  and  he  came  up  with  an 
interesting  comment.  He  said,  "How  long  does  it  take  a  sheriff  earning  $9,000  a  year  to 
save  $50,000  that  he  might  get  just  by  being  somewhere  else  on  a  particular  evening?" 
This  is  the  kind  of  challenge  that  all  of  us  face  today.  The  FBI  is  not  immune;  the  DEA  is 
not  immune;  even  the  prosecutors  have  not  been  immune  from  this  kind  of  corrupting 
effect.  And  it  is  going  to  be  particularly  true  in  lower-paid  political  positions  where  the 
lure  of  a  little  bit  of  cash  for  doing  nothing—  nothing  violent,  just  being  somewhere  elso, 
or  even  providing  early  warning  —  I  think  it's  going  to  be  our  major  challenge  and  we've 
got  to  work  at  ways  to  improve  the  integrity  and  the  resistance  of  our  public  officials. 
Corruption  of  public  officials  is  a  key  part  of  organized  crime... 

Attorney  General  Smith  on  Source  Countries:  I  think  an  area  that  has  been  greatly 
neglected  in  this  drug  fight  has  to  do  with  source  countries  and  transient  countries.  I 
think  that  we  need  to  have  a  much  more  directed  effort  at  getting  at  the  source  countries 
and  transient  countries  and  working  with  them  and  aiding  them  to  get  at  this  probletn 
there,  before  it  gets  into  the  network.  For  example,  when  I  was  in  Pakistan,  the  day 
before  I  arrived  they  seized  100  kilos  of  pure  heroin  in  one  truck.    When  you  think  of  how 

25-694   O   -    84    -    17 


much  easier  it  was  to  get  that  100  kilos  there  before  it  had  been  cut  and  cut 
see  a  dollar  spent  there  is  a  more  valuable  dollar  than  one  spent  anywhere  else  along  tiiL 
distribution  trail. 


Governor  Charles  Robb  (Virginia);  Recently,  we've  seen  some  evidence  in  the  newspapers 
that  the  price  of  certain  controlled  substances  has  decreased,  notwithstanding  the 
President's  initiative.  Is  this  a  legitimate  indicator  of  success  or  lack  of  success  in  this 
area,  or  should  we  look  to  some  other  criteria  for  evaluating  the  success  of  our  efforts? 

FBI  Director  Webster:  There  are  so  many  factors  at  work  it  is  very  much  like  asking 
"what  causes  crime".  I  think  that  price  is  an  indicator  but  certainly  not  the  only 
indicator.  Supply  can  be  measured  in  part  by  what  we  are  able  to  interdict  and 
seize.  And  that  again  is  a  function  not  just  of  the  Department  of  Justice,  but  also 
the  Treasury  Department's  Customs  has  primary  responsibility  there  with  DE/a 
assisting.  The  availability  of  what  we  see  doesn't  necessarily  indicate  what's 
available.  It  depends  on  how  much  intelligence  indicates  is  coming  into  the  country 
to  be  consumed... 

Associate  Attorney  General  Giuliani;  It  is  difficult  to  measure  by  any  one  standard 
success  in  drugs  or  any  kind  of  law  enforcement. 

Governor  George  Deukmejian  (California);  In  the  explanation  that  we  have  heard  about 
the  cooperation  of  the  task  forces,  I  did  not  hear  any  mention  made  about  the  various 
regional  information  networks  that  are  in  existence.  I  know  some  of  those  there  were 
some  problems  with  them;  the  one  we  have  on  the  West  Coast  -  our  Western  States 
Information  Network  —  dealing  specifically  with  the  drug  problem;  we  have  found  to  be 
very,  very  successful  covering  nine  Western  states.  I  did  not  hear  in  any  of  the  discussion 
what  the  intent  is  with  respect  to  maintaining  their  involvement  in  the  task  force. 

FBI  Director  Webster;  Governor  Deukmejian,  we  are  very  much  aware  of  those 
systems.  Some  are  better  than  others,  particularly  with  respect  to  security.  We've 
got  to  resolve  those  questions,  which  we  are  currently  addressing.  It  is  very 
important  that  investigations  go  forward  without  any  kind  of  breach  of  security. 
Some  systems  were  not  originally  designed  for  that  level  of  security. 

Governor  Dckmejian;  How  successful  is  the  provision  that  has  been  recently  emphasized 
with  respect  to  the  seizure  of  assets  of  drug  people  dealing  in  drugs,  organizations  dealing 
in  drugs.  Can  anybody  at  this  point  give  us  any  indication  as  to  what  extent  that  has  had 
an  impact? 

Associate  Attorney  General  Giuliani;  Last  year,  we  came  pretty  close  to  seizing 
assets  comparable  to  the  entire  budget  of  DEA.  In  other  words,  DEA  came  pretty 
close  to  paying  for  itself  ...not  counting  drugs.  Three  major  changes  that  would  be 
very  helpful  in  federal  lew  would  be;  (1)  if  we  could  reach  the  profits  of  drug 
dealers.  When  they  invest  their  money  in  legitimate  businesses,  we  can  seize 
property  but  we  often  can't  seize  the  business  and  the  profit.  Legislation  that 
passed  the  Senate  last  year  would  permit  us  to  do  that.  (2)  Secondly,  more 
simplified  procedures  to  dispose  of  property.  Now  it  takes  two  or  three  years  to  go 
through  civil  forfeiture  proceedings  in  order  to  dispose  of  a  car  or  even  a  plane.  By 
that  time,  it  may  have  lost  all  value.  (3)  Number  three,  it  would  be  very  helpful  if 
some  or  all  of  those  proceeds  that  we  seize  would  go  into  law  enforcement  rather 
than  into  the  general  treasury.  If  you  turn  it  back  to  law  enforcement,  a  lot  of  the 
drug  enforcement  budget,  if  not  all  of  it,  would  be  offset  really  by  the  profits  of 
drug  dealers. 


Remarks  of 

Governor  Dick  Thomburgh 

Commonwealth  of  Pennsylvania 

February  27,  1983 

Our  problem  in  Pennsylvania  is  somewhat  different  than  in  the  border  states.  We 
have  a  sizable  user  population  and  the  size  and  configuration  of  our  state  causes  us  to 
focus  upon  primarily  the  distribution  networks  within  our  state  and  in  particular  on  major 
metropolitan  areas.  For  example,  our  enforcement  efforts  last  year  resulted  in  the 
closing  down  of  17  major  laboratories  for  manufacturing  and  processing  of  narcotics  and 
dangerous  drugs.  We  also  had  a  unique  exercise  dealing  with  the  problem  of  look-alike 
drugs  which  is  a  spin-off  from  the  regular  traffick  we  are  all  familiar  with,  in  those  who 
seek  to  peddle  substances  which  are  in  fact  harmless  and  these  resemblances  can  have 
unfortunate  consequences  among  the  user  population  which  develops  a  familiar'ty  with 
look-alike  drugs  and  gets  a  pure  substance. 

Our  enforcement  activities  in  the  last  five  years  have  taken  a  poignant  leap  as  we 
have  introduced  techniques  into  law  enforcement  that  are  familiar  to  those  of  us  who 
have  been  engaged  in  that  effort  at  the  federal  level.  But  in  Pennsylvania,  for  example, 
five  years  ago  we  had  no  electronic  surveillance  laws.  We  do  have  and  do  utilize  a  court- 
authorized  electronic  surveillance  technique  today  with  great  advantage  in  this  area. 

Five  years  ago,  we  had  no  investigative  grand  jury.  We  have  had  statewide  grand 
juries  which  focus...on  narcotics  and  dangerous  drugs. 

Five  years  ago  we  did  not  have  an  effective  immunity  law  which  enables  us  to 
develop  cases  up  the  rungs  of  the  ladder  in  major  organized  crime  and  narcotics 
distribution  networks.   And  we  have  got  the  law  today. 

We  also  have  an  effective  victim  and  witness  protection  law  which  enables  us  to 
thwart  efforts  to  intimidate  and  terrorize  those  who  are  necessary  to  make  these  cases 
that  often  are  dependent  upon  departments'  undercover  operations  and  witnesses  wouldn't 

Five  years  ago  we  did  not  have  an  independent  crime  commission  to  carry  out  its 
own  investigative  activity  and  acquaint  the  public  with  the  true  dimensions  of  organized 
crime  and  drug  trafficking. 

Five  years  ago,  we  did  not  have  an  independently  elected  attorney  general  with 
adequate  resources  to  deal  with  the  problem  of  crime  in  general.  An  attorney  general 
who  today  holds  office  and  focuses  attention  on  the  drug  problem  to  great  advantage  to 
the  state. 

In  short,  we  have  I  think,  through  the  cooperation  of  our  Pennsylvania  State  Police 
and  the  attorney  general. ..local  law  enforcement  agencies.  a  real  role  and  have  a 
real  presence  and  offer  the  type  of  personnel,  expertise  and  commitment  that  federal 
officials  can  take  full  advantage  of  in  mounting  a  coordinated  effort  against  narcotics  and 
dangerous  drugs.  We  have  165  investigators  working  full-time  in  our  state  on  drug 
investigations  through  eight  regional  drug  strike  forces  which  are  dispersed  throughout  the 
state  and  which  will  integrate  very  well  in  terms  of  geography  with  the  land  configuration 
of  the  federal  effort. 

We  also  carry  out  a  number  of  training  operations  for  local  law  enforcement 
operations  and  every  one  of  our  state  troopers  is  rotated  at  one  time  or  another  through 
the  narcotics  and  dangerous  drugs  effort. 

We  recognize,  of  course,  as  is  the  theme  of  what  is  being  expounded  here  this 
morning,  that  there  is  in  addition  to  the  supply  side  interdiction  that  is  important  to  be 
carried  out  through  law  enforcement,  a  demand  side  to  the  drug  problem  which  depends 
upon  effective  programs  that  are  designed  to  prevent  persons  from  becoming  addicted 
either  physically  or  psychologically  to  drugs  of  various  kinds  and  which  also  encompass 
treatment  and  education  programs  which  are  designed  to  deal  with  the  before  and  after  of 
this  tragic  problem. 

We  have  a  very  effective  council  on  drug  and  alcohol  abuse  within  state  govern- 
ment... Joint   projects   are   carried   out   within   state   government   and    local    government 


counterparts  in  the  fields  of  education,  prevention  and  treatment  in  an  attempt  to  mount 
an  across-the-board  effort.  Some  of  the  efforts  I  think  are  noteworthy  are. ..prevention 
networi<  which  was  developed  by  the  state  Department  of  Health  and  Education.  It 
trained  some  800  teachers  in  135  school  districts  in  drug  abuse  prevention  and  has 
developed  what  we  think  is  a  model  curriculum  to  support  that  effort  in  the  schools. 

We  have  an  employee  assistance  program  to  identify  and  assist  state  workers  with 
drug  and  alcohol  problems  that  works  in  cooperation  with  private  employers  to  enhance 
that  capability  which  has  a  very  harmful  effect  on  the  workforce  unattended  to. 

We  have  a  program  called  Treatment  Alternatives  to  Street  Crime  which  deals  with 
the  addict  criminal  and  in  an  effort  to  develop  alternatives  to  incarceration  on  an 
experimental  basis  in  11  of  our  counties  we  have  tried  to  divert  those  who  are  commiting 
addiction-connected  crimes  into  alternative  programs  so  that  we  can  assess  the  efficacy 
of  that  kind  of  alternative. 

We  have  federal  drug  treatment  programs  for  state  prison  inmates  as  well.  I  think 
what  we  are  most  gratified  with  respect  to  our  own  effort  is  that  we  have  seen 
considerable  progress  made  in  public  awareness  about  the  nature  and  extent  of  the  drug 
problem.  That  there  is  indeed  a  massive  underground  business  with  substantial  profits 
that  are  being  realized  from  trafficking  in  human  misery  and  that  there  is  much  that  can 
be  done  on  the  prevention  side  as  well  as  on  the  law  enforcement  side  to  deal  with  this 

{  Remarks  of 

Governor  Lamar  Alexander 
State  of  Tennessee 
February  27,  1983 

I'd  like  to  add  my  appreciation  to  the  Attorney  General  and  Judge  Webster. ..for  the 
work  that  they've  done.  The  longer  that  I  stay  around  government,  the  more  I  think  that 
still  while  the  extra  money.  very  helpful,  that  the  bigger  challenge  is  spending  what 
we've  already  got  well. 

And  quite  obviously,  during  the  last  six  months  to  a  year  in  our  state,  the  previous 
cooperation  and  coordination  with  the  federal  agencies,  what  we've  learned. ..has  helped  us 
to  do  a  much  better  job. 

We've  consolidated  out  efforts  through  the  TBI  (Tennessee  Bureau  of  Investigation); 
my  four-year  budget  plan  for  the  next  four  years  adds  some  resources  in  a  more  specific 
way  than  I  would  have  been  able  to  do;  and  we've  got  a  council  working  on  what  the  group 
that  Bob  (Graham)  got  together  in  December  says  should  be  our  number  one  project,  and 
that  is  to  decrease  the  demand  for  drugs,  and  we're  using  examples  from  other  states.. .We 
are  using  the  Florida  model  to  determine  some  of  the  civil  remedies... 

Those  are  specific  things  that  we  are  doing  in  our  state.  We  appreciate  the  work  of 
other  states  and  efforts  a  number  of  the  Governors  made  and  a  number  of  the  law 
enforcement  officers  made  in  the  meeting  in  Nashville,  September  15  and  16. 

Remarks  of 

Governor  Bob  Graham 

State  of  Florida 

February  27,  1983 

I,  too,  want  to  express  my  appreciation  to  the  Attorney  General. ..outstanding 
cooperative  efforts  that  they  have  rendered  to  our  state  and  to  other  states. 

In  terms  of  state  action,  I  would  categorize  under  four  headings: 

First,  the  state  action. ..and  local  governments.  In  our  state,  and  I  think  it  would  be 
true  in  most  states,  local  governments  only  have  those  financial  resources  and  capabilities 
which  the  state  provides.    One  or  two  responsibilities  of  the  state  is  to  assure  that  local 


governments  have  access  to  adequate  resources  with  which  to  fight  drugs  and  other 
criminal  activities.  In  our  state,  we  had  not  done  an  adequate  job  and  that  resulted  in 
many  of  our  local  law  enforcement  agencies  having  fewer  personnel  in  1981  than  they  had 
five  years  earlier.  The  last  legislature  substantially  increased  funds  to  local  government, 
which  resulted  in  an  immediate  increase  in  the  law  enforcement  capabilities  of  most  of 
our  local  communities. 

Second,  is  local  coordination.  Through  our  Department  of  Law  Enforcement  at  the 
state  level,  we  have  developed  mutual  aid  pacts  between  municipalities  and  counties  so 
that  more  effective  use  of  resources  is  available  to  government  and  can  be  used. 

Third,  is  state  assistance. ..We  operate  a  series  of  crime  laboratories  —  f oren- 
sics  —  which  do  the  primary  technical  support  for  local  law  enforcement. 

And,  finally,  training.  The  responsibility  for  setting  standards  and  training  law 
enforcement  officials  in  our  state  is  at  the  state  level. 

At  the  state  level,  first  there  are  law  changes.  We  have  substantially  increased  our 
legal  framework  for  drug  trafficking.  There  has  been  a  recent  case  involving  a  well 
known  football  player  who  received  a  long  sentence  under  our  minimum  mandatory 
sentence  for  persons  involved  in  drug  trafficking.  That  has  proven  to  be  a  strong 
deterrent  against  drug  trafficking  in  our  state.  The  only  ability  to  waive  that  minimum 
mandatory  under  our  law  is  to  get  the  person  to  agree  to  cooperate... 

We  have  both  a  criminal  and  a  civil  RICO  act  which  allow  the  confiscation  of  both 
the  items  and  the  products  of  the  criminal  conspiracy  which  again  has  proven  to  be  an 
effective  deterrent  and  a  significant  gain  in  resources  for  law  enforcement. 

We  recently  changed  our  bail  law  by  constitutional  amendment.  We  received  over 
70%  voter  approval  to  allow  us  to  increase  or  even  deny  bail  to  people  who  we  have 
reason. ..a  judge  has  reason  to  feel  cannot  be  restrained. ..regardless  of  the  monetary 
amount;  particularly  this  is  a  problem  with  drug  trafficking. 

A  second  goal  of  the  state  is  statewide  investigation,  enforcement  and  prosecution. 
We  have  centralized  intelligence. ..We  have  a  statewide  system  of  highway  checkpoints  to 
control  road  transportation  of  drugs... 

We  have  a  high-level  narcotics  organization  for  conspiracy.. .which  has  been 
particularly  aided  by  the  cooperation  of  federal  agencies.  We  also  have  a  program  in 
cooperation  with  federal  agencies  to  identify  profiles  of  suspected  drug  dealers  and 
organized  crime  traffickers. 

The  third  area  at  the  state  level  is  eradication.  We  have  had  an  extensive  manual 
eradication  program,  and  beginning  last  year  for  the  first  time  we  used  Paraquat  where 
the  scale  of  the  operation  is  such  that  it  is  not  feasible  to  do  it  manually.  In  my  opinion, 
it  is  appropriate  that  this  be  under  state  control  so  that  all  of  the  legitimate 
concerns  —  environmental,  health  and  otherwise  —  can  be  controlled  by  people  who  have 
appropriate  training  and  supervision  for  this  effort. 

And  finally,  at  the  state  level  is  an  effective  education  program. ..We're  going  to  be 
spending,  over  the  next  two  years,  over  $5  million  beyond  our  current  expenditures  on 
drug  education  programs  within  our  public  schools.    We  think  it  will  be  money  well  spent... 



The  Governors'  Project 

A  Program  to  Cooperate  with  the 

Administration's  Effort  to  Combat 

Illegal  Drug  Trafficking  and  Organized  Crime 

January  6,  1983 


On  November  18,  1982,  the  National  Governors'  Association,  under  the  auspices  of 
its  Committee  on  Criminal  Justice  and  Public  Protection,  convened  an  Ad  Hoc  Group  of 
criminal  justice  policy  makers  and  practitioners  for  the  purpose  of: 

(A)  Responding  to  the  Reagan  Administration's  proposal  that  a  "Governors'  Project" 
be  incorporated  as  an  element  of  its  eight-point  attack  on  drug  trafficking  and 
organized  crime;  and, 

(B)  Deliberating  future  NGA  policy  in  the  area  of  drug  trafficking  and  organized 
crime  generally. 

The  Ad  Hoc  Group  was  assisted  in  its  efforts  by  Dr.  Nolan  E.  Jones,  staff  director  of 
the  NGA  Criminal  Justice  Committee,  and  staff  of  the  National  Criminal  Justice 
Association  under  the  direction  of  its  executive  vice  president,  R.  Thomas  Parker,  who 
served  as  facilitator  for  the  meeting. 


In  October  of  1982,  the  Reagan  Administration  made  two  announcements  of  its 
intent  to  intensify  its  focus  on  the  drug  problem  in  this  country  —  the  first,  placing 
enforcement  efforts  in  the  larger  context  of  the  elements  required  to  effect  a  compre- 
hensive campaign  to  prevent  drug  abuse  and  drug  trafficking;  the  second,  focusing  on 
enforcement  alone  and  providing  an  eight-point  program  directed  specifically  at  stopping 
drug  trafficking  and  destroying  the  criminal  organizations  responsible  ior  the  important 
and/or  production  of  illegal  drugs,  their  transportation,  and  distribution. 

One  element  of  the  administration's  eight-point  enforcement-oriented  program  was 
a  "Governors'  Project"  described  in  the  October  Itt  announcement  of  the  same  as  a  "major 
project  to  enlist  all  50  of  the  nation's  Governors  in  an  effort  to  bring  about  needed 
criminal  justice  reforms."  The  announcement  further  described  this  project,  in  general 
terms,  as  a  vehicle  to  aid  in  "coordinat(ing)  federal  efforts  with  state  and  local 
enforcement  programs";  a  source  of  assistance  to  the  states  in  developing  "resources  they 

1.  An  October  5  press  release  from  the  White  House  announced  the  "1982  Federal 
Strategy  for  the  Prevention  of  Drug  Abuse  and  Drug  Trafficking",  defining  this 
strategy  to  consist  of  activity  in  five  areas:  international  cooperation  in  eliminating 
foreign  sources  of  illegal  drugs;  domestic  enforcement  efforts  directed  at  halting 
trafficking,  and  destroying  organized  criminal  organizations  involved  in  illegal  drug- 
related  activities;  drug  education  and  prevention;  treatment  of  the  drug  abuser;  and, 
research  on  drug  abuse. 

2.  This  eight-point  program,  announced  October  l^f,  encompassed  the  following:  the 
creation  of  12  regional  task  forces  to  fight  drug  trafficking;  establishment  of  a 
Presidential  Commission  on  Organized  Crime;  a  "Governors'  Project";  creation  of  a 
cabinet-level  Committee  on  Organized  Crime;  increased  training  of  state  and  local 
law  enforcement  personnel;  reforming  certain  federal  criminal  laws  such  as  the 
exclusionary  rule  to  support  the  crack-down  on  drug  traffickers;  an  annual  report 
from  the  Attorney  General  on  the  status  of  the  fight  against  organized  crime;  and 
the  creation  through  construction  and  contracting  of  additional  jail  space  to  house 
drug  offenders. 


need  for  a  full  role";  as  an  "important  forutn  for  the  states  to  tell  the  federal  government 
of  their  concerns  about  organized  crime  and  related  enforcement  problems";  and,  as  a; 
"invaluable  supplement  to  the  Law  Enforcement  Coordinating  Committees". 

In  its  efforts  to  gather  further  definition  from  the  administration  of  its  intent  in 
calling  for  a  "Governors'  Project",  the  Ad  Hoc  Group  met  with  Mr.  Richard  Williams  of 
the  White  House  Office  of  Drug  Abuse  Policy  and  Mr.  Rudolph  Giuliani,  Associate  Attorney 
General,  in  the  course  of  its  November  18  meeting.  Mr.  Williams  deferred  to  Mr.  Giuliani 
in  the  discussion  of  the  "Governors'  Project"  called  for  in  the  eight-point  program,  but 
urged  Governors  to  assume  a  role  in  drug  abuse  prevention  encouraging  the  designation  by 
the  Governor  in  each  state  of  a  prominent  individual  to  serve  as  the  lead  prevention 
advocate  on  the  behalf  of  the  chief  executive  of  the  state. 

Mr.  Giuliani,  in  addressing  himself  to  the  "Governors'  Project",  described  a 
"mechanism"  to  provide  the  opportunity  for  dialogue  between  the  Governors  and  key 
members  of  the  administration  on  issues  relating  to  drug  trafficking  and  organized  crime. 
He  mentioned  specifically  the  Attorney  General  of  the  United  States  and  the  Assistant  to 
the  President  for  Intergovernmental  Affairs  as  two  key  Administration  officials  who 
should  be  drawn  into  such  dialogue  with  the  Governors. 

Based  upon  its  deliberation  of  the  Administration's  call  for  a  ''Governors'  Project" 
and  the  references  made  by  the  Administration  in  so  doing,  the  Ad  Hoc  Group  concludes 
that  the  Administration  is  primarily  interested  in  initiating  dialogue  between  the 
Governors  and  key  Administration  officials  in  order  to  elicit  the  Governors'  support  and 
cooperation  with  the  recently  intensified  federal  efforts  to  crack  down  on  drug  trafficking 
and  organized  crime. 


The  Ad  Hoc  Group  recommends  that  the  nation's  Governors  agree  to  support  the 
Administration's  efforts  to  crack  down  on  drug  trafficking  and  organized  crime  but  that 
such  support  be  premised  upon  the  Administration's  full  and  continuing  commitment  to 
winning  the  "war  on  drugs";  assume  continued  federal  leadership  and  preeminence  in 
efforts  to  interdict  and  eradicate  drug  supplies;  and  call  for  greater  sharing  of  intelli- 
gence and  federally-controlled  resources  by  federal  enforcement  officials  with  their  state 
and  local  counterparts. 

The  Ad  Hoc  Group  further  recommends  that  the  "Governors'  Project"  also  include 
the  following: 

•  That  top  White  House  and  Department  of  Justice  officials  agree  to  meet  twice 
yearly  with  NGA  selected  Governors  to  discuss  policy  issues  of  mutual  interest 
and  concern  relating  to  drug  trafficking  and  organized  crime;  and  that  the 
meetings  be  held  in  conjunction  with  NGA's  annual  and  mid-winter  meetings  or 
other  mutually  agreed  upon  times. 

•  That  the  Department  of  Justice  be  asked  to  meet  with  and  to  include  selected 
representatives  of  the  nation's  Governors  on  the  internal  operational  working 
group  responsible  for  administration  of  the  12  regional  task  forces  at  the 
national  level;  that  these  representatives  be  given  equal  status  to  the  other 
members  of  that  body  and  involved  as  equals  in  their  decision-making;  that 
these  representatives  be  state  officials  actively  involved  in  policymaking  and/or 
ojjerations  in  drug  enforcement  at  the  state  level. 

•  That  in  an  effort  vo  insure  operational  coordination  between  the  federal  task 
force   effort    and    state   and    local    enforcement    programs,   each   Governor    be 
advised  to  appoint  a  state  drug  enforcement  coordinator  to  meet  on  a  regular 
basis  with  the  lead  administering  federal  official  within  each  of  the  12  regional 
task  force  areas  which  operates  within  or  encompasses,  undef  its  jurisdiction,  a 
given  state.    Coordination  meetings  between  all  Governor  appointed  state  drug 
enforcement  coordinators  and  the  appropriate  lead  federal  task  force  official(s) 
(core  area)  should  take  place  not  less  than  six  times  per  year. 


That  the  National  Criminal  Justice  Association,  on  behalf  of  NGA,  identify 
major  areas  in  which  reform  of  state  criminal  statutes  might  be  undertaken  to 
support  state  efforts  to  combat  drug  trafficking  and  organized  crime  and 
develop,  for  dissemination  to  the  states,  a  report  on  drugs  and  a  guide  to  state 


executive  and  legislative  branch  officials  in  the  formulation  of  legislation  in 
those  areas. 

That  the  principles  in  the  NGA  policy  entitled  Controlling  Abuse  and  Illegal 
Traffic  in  Narcotics  (B-6)  and  the  supporting  descriptive  NGA  Report  entitled 
Strategies  For  Drug  Control  Efforts,  together,  be  recognized  as  an  essential 
part  of  the  "Governors'  Project";  each  state  is  strongly  encouraged  to  consider, 
support  and  implement  all  or  part  of  the  recommendations  which  will  contribute 
to  a  balanced  state-based  drug  program. 


B.  -6 

Illicit  drugs  have  contributed  substantially  to  the  crime  problem  in  our  states. 
Recent  studies  show  that  50  percent  of  all  prison  inmates  used  drugs  prior  to  the  offense 
for  which  they  were  arrested.  Illegal  profits  from  drug  trafficking  are  in  the  tens  of 
billions  of  dollars  annually.  States  cannot  effectively  control  crime  unless  the  traffic  in 
illegal  narcotics  is  controlled. 

The  illicit  drug  problem  goes  far  beyond  state  and  even  national  boundaries.  I*  is  an 
international  concern  which  can  be  controlled  only  if  addressed  in  an  international 
context.  The  Administration  should  consider  illegal  traffic  in  narcotics  as  a  crucial 
element  of  foreign  policy,  especially  when  negotiating  with  major  source  countries. 

Individuals  who  traffic  in  large  quantities  of  drugs  for  substantial  profit  merit 
treatment  in  the  criminal  justice  system  significantly  different  from  the  common  street 
user.  Court  appearance  by  dealers  who  make  astronomical  profits  can  be  assured  only  by 
setting  high  bail.  Fines  and  prison  terms  can  be  effective  deterrents  if  they  are  severe 
enough  to  counterbalance  extensive  profits.  Forfeiture  of  any  profit  realized  through 
drug  trafficking  must  be  a  clear  consequence  of  conviction.  The  Administration  and 
Congress  deserve  support  for  their  efforts  to  stiffen  provisions  in  the  U.S.  Criminal  Code 
which  apply  to  illegal  traffic  in  narcotics. 

The  amended  Statute  of  Posse  Comitatus  which  was  signed  into  law  by  the  President 
in  December  1981  also  deserves  support.  The  military  should  work  with  federal,  state  and 
local  officials  in  their  efforts  to  control  drug  smuggling  into  the  country  and  drug-related 
organized  crime. 

These  efforts  must  be  complemented  with  a  federal,  state  and  local  strategical 
comprehensive  approach  to  reduce  the  availability  of  illegal  drugs  and  the  adverse  effects 
of  drug  abuse  in  society.  This  approach  must  include  international  cooperation,  drug  law 
enforcement,  education  and  prevention,  detoxification  and  treatment,  and  research.  The 
following  points  should  be  considered  in  developing  comprehensive  sound  policy  to  combat 
drug  abuse  and  trafficking: 

•  Need  for  Increased  Educational  Effort:  There  must  be  consistent  exchange  of 
information  and  ideas  among  the  various  disciplines  that  can  have  an  impact 
on  consumer  demand.  The  ultimate  long  term  success  of  drug  control  efforts 
is  not  possible  without  a  marriage  of  these  disciplines,  supported  by  an 
educated  and  involved  public.  Therefore  each  state  should  consider  the 
establishment  of  a  Blue  Ribbon  Statewide  Drug  Education  Commission  involv- 
ing leaders  from  the  public  and  private  sector. 

•  Need  for  Intensified  Eradication  and  Interdiction:  Military/Naval  Assistance 
to  State/Local  Governments;  The  federal  government  has  exclusive  respon- 
sibility  for  coordinating  interdiction  of  drug  shipments  from  foreign  countries 
and  assisting  those  countries  in  the  eradication  of  drugs  at  the  source.  This 
should  be  a  top  priority  of  the  federal  government.  Also,  the  Administration  is 
urged  to  expand  the  role  of  the  military  forces  of  the  United  States  in  air  and 


sea  interdiction  efforts.     This  role  should  include  all  regions  of  the  country, 
and  should  represent  a  more  significant  effort  than  presently  exists. 

•  Need  for  a  National  Reaction;  We  must  show  that  this  is  a  very  serious  effort 
to  combat  drug  abuse  and  trafficking  in  this  nation.  Over  the  past  decade, 
numerous  states  have  been  adversely  affected  by  the  growing  drug  problem. 
These  states  have  taken  independent  steps  to  combat  the  problem;  however, 
their  resource  limitations  and  geographic  restrictions  have  hindered  their 
effectiveness.  The  federal  government,  realizing  the  national  ramifications  of 
the  drug  problem,  has  conducted  several  significant  operations  which  have 
lessened  these  restrictions  and  limitations,  such  as  the  recent  Bush  Task  Force 
in  South  Florida  and  the  creation  of  12  regional  task  forces.  The  nation'*; 
governors  appreciate  this  effort  and  encourage  the  federal  government  to 
maintain  on  a  permanent  basis  the  federal  resources  associated  with  this 

•  Need  for  a  Centralized  Information  and  Intelligence  Data  Base;  Law  enforce- 
ment agencies  involved  in  drug  control  have  historically  been  hampered  by 
lack  of  accessible  and  assessable  intelligence  information  relating  to  illegal 
trafficking.  A  centralized  systetn  to  receive,  analyze  and  disseminate 
information  among  state  and  local  law  enforcement  agencies  must  exist  if 
proactive,  non-duplicative  and  significant  targeting  efforts  are  to  occur.  Such 
a  system  must  interact  with  similar  systems  in  other  states  and  the  federal 

•  Need  for  Concerted  Street  Enforcement  Activity;  Local  law  enforcement 
agencies  must  provide  the  immediate  response  to  a  variety  of  community 
demands  in  crime  control.  It  is  difficult  for  those  agencies  to  dedicate  already 
strained  resources  to  provocative  drug  prevention  and  enforcement  problems. 
Governors  and  legislators  of  the  various  states  should  apply  maximum  support 
and  effort  toward  increasing  resources  (personnel  and  equipment)  of  local  law 
enforcement  agencies. 

•  Need  for  Standard  Legislat'on;  There  exists  a  great  deal  of  disparity  among 
the  states'  drug  laws.  There  is  evidence  that  smuggling  organizations  have 
taken  advantage  of  some  states'  deficiencies  in  legal  recourse  and  probabilities 
of  detection,  apprehension  and  prosecution.  Therefore,  each  state  should 
establish  a  legislative  committee  of  prosecutive,  enforcement,  judicial  and 
legislative  members  to  examine  and  develop  a  comprehensive  system  of  model 
and  uniform  laws  dealing  with  the  drug  problem.  Also,  a  National  Committee 
should  be  created,  reporting  to  the  National  Governors'  Association's 
Committee  on  Criminal  Justice  and  Public  Protection.  This  committee  will 
develop  a  comprehensive  system  of  model  and  uniform  laws  dealing  with  the 
drug  issue. 

•  Need  for  Greater  Prosecutorial  Commitment;  Heavy  court  dockets  and  broad 
responsibilities  minimize  prosecutors'  effectiveness  in  dedicating  resources  to 
the  prosecution  of  major  drug  smuggling  operations.  Alternative  approaches 
to  drug  prosecution  and  greater  levels  of  coordination  among  circuits  dealing 
with  multi-jurisdictional  organizations  are  needed.  Prosecutors  should  take 
steps  to  expedite  drug  enforcement  cases,  as  has  been  successfully  ac- 
complished in  cases  involving  career  criminals.  Additional  prosecutorial 
resources  are  needed  to  provide  for  dedication  to  prosecution  of  highly 
financed  and  well  defended  drug  organizations. 

•  Need  for  Coordination  of  Efforts  of  Local  Agencies;  There  is  generally  no 
mechanism  to  provide  for  local/state  agencies  to  pool  their  resources  and  work 
together  on  common  drug  targets.  Equipped  with  the  necessary  legislation, 
agencies  can  draft  contractual  agreements  to  effect  "jomt  force  operations'' 
or  "mutual  aid  pacts"  to  expand  resource  and  jurisdictional  abilities  to  attack 
drug  operatives.  States  should  consider  developing  the  necessary  legislation 
for  a  "mutual  aid  system,"  whereby  law  enforcement  agencies  can  contractual- 
ly join  together  and  pool  their  knowledge,  resources  and  skilJs  toward 
investigatively  attacking  drug  smuggling  networks. 

These  policies  are  to  be  included  as  a  part  of  the  report  entitled  The  Governor's 


Project;     A  Program  to  Cooperate  with  the  Administration's  Efforts  to  Combat  Illegal 
Drug  Trafficking  and  Organized  Crime. 

The  National  Governors'  Association  also  wishes  to  commend  the  President  for  his 
initiatives  to  combat  abuse  and  illegal  drug  trafficking,  and  organized  crime.  Further- 
more, we  support  the  Presidential  initiatives  of: 

•  A   Cabinet  level  Committee  on  Organized  Crime,  chaired   by  the  Attorney 
General,  to  review  and  coordinate  all  federal  efforts  against  organized  crime; 

•  The  Attorney  General's  annual  report  to  the  American  people  on  progress  and 
needs  in  the  drug  fight; 

•  Additional    prison    and    jail    space    to    complement    the    need    caused    by   the 
creation  of  the  twelve  federal  task  forces;  and 

•  Emphasis  on  training  of  state  and  local  law  enforcement  personnel. 



Strategies  for  Drug  Control  Efforts 

In  July  1982,  at  the  Annual  Meeting  of  the  Southern  Governors"  Association  in  Hilton 
Head,  South  Carolina,  the  southern  governors  agreed  that  international  drug 
trafficking  has  become  an  issue  of  major  regional  concern.  Governor  Lamar  .\lexander 
of  Tennessee  and  Governor  Bob  Graham  of  Florida  invited  govemors  and  state  law 
enforcement  officials  to  a  special  meeting  in  Nashville,  Tennessee  to  discuss 
strategies  for  handling  drug  trafficking  problems.  The  results  of  that  meeting,  held  in 
September  1982,  were  eight  policy  recommendations  for  states  to  enhance  drug 
control  efforts.  These  recommendations  subsequently  received  unanimous  concur- 
rence from  all  participating  states. 

On  October  14,  1982,  President  Reagan  announced  his  national  initiatives  to  combat 
dnjg  smuggling  and  organized  crime.  These  initiatives  are  consistent  with  the 
recommendations  developed  by  the  govemors  in  Nashville. 

An  ad  hoc  staff  group  of  the  National  Governors'  Association  (NGA)  met  in 
VC'ashington.  D.C  on  November  18,  1982,  to  define  the  role  of  the  Governors'  Project 
included  in  the  President's  initiatives.  The  group  also  agreed  to  work  with  staff  of 
Governor  Bob  Graham  of  Florida  to  prepare  an  implementation  strategy-  for  the  eight 
policv-  recommendations  approved  by  the  southern  states.  On  January'  13,  1983, 
Commissioner  Robert  Dempsey  of  the  Florida  Department  of  Law  Enforcement 
presented  an  implementation  strategy  to  the  ad  hoc  committee  for  their  review  and 
comment.  The  southern  govemors  wish  to  express  their  appreciation  to  the  members 
of  this  committee  for  their  willingness  to  work  on  this  endeavor. 

L'pon  adoption  of  the  implementation  strategy  by  the  NGA,  a  steering  committee 
should  be  appointed  immediately  to  oversee  and  ensure  implementation.  This 
steering  committee  should  submit  an  annual  report  to  the  NGA  on  progress  related  to 
these  initiatives. 

Both  the  President's  and  the  govemors'  recommendations  indicate  that  it  is 
imperative  that  implementation  of  drug  strategies  be  closely  coordinated  among  the 
states  and  at  the  federal  level. 

Executive  Summary 

The  foUcjwing  is  a  plan  for  implementmg  recommenda-  ^    Coocened  street  enforcement  activity,  urging 

uoos  for  drug  control  that  was  drafted  bv  an  ad  hoc  J    stronger  suppon  for  local  bw  enforcement  agencies 
group  torn  the  NGA  in  January  1983  The  following  eight  drug  control  personnel  and  equipment; 

iiems  were  identified  as  needed  for  bener  drug  control  in 
the  United  States: 


6    Standard  legislation,  to  be  developed  in  each  suce 
and  through  a  natiorul  commiaee  formed  for  this 

7    Greater  prosecutorial  commitment,  with  the 
same  pnonrv-  given  to  drug  cases  as  to  other  priont>' 
luiiiiiciii  ui  uiuc  riuDoii  cuinmissions  in  cacn  siaie  areas;  and 

and  a  fedenJiv  sponsored  national  education  ,-_.  ,    _  , .       . 

program.  Q    Coonlinatlon  of  efforts  of  local  agencies  en 

^y    abling  agencies  to  pool  ir^formation  and  resources  for 
Intensified  eradication  and  Interdiction.  Le„  maximum  effort 

military/ naval  assistance  to  state  and  local 
governments,  focusing  on  the  destruaion  of  drugs 

at  their  source,  foreign  or  domestic,  and  onan  ^    ^  .    .  .  ,  .- 

increased  military  commitment  to  the  interdia.on  of       ^ach  recommendauon  is  accompanied  bv  specific  sugges- 
drugs  being  imported  bv  air  or  sea;  "«"  ^"'  *^'°"*  gONemors  might  take  or  suppon  TTiere 

is  also  a  comment  on  the  fiscal  impaa  of  each  recommen- 
National  reaction,  encouraging  the  conunuation  of       dation  and  wavs  in  which  this  might  be  minimized 
tfie  Bush  Task  Force  and  the  twelve  regional  task  ^  ^^^  „f  p„s,dential  initiatives  that  were  not  among  those 

^"^"^  developed  bv  the  NGA.  but  which  ne\erTheless  deserve 

Centralized  informatloo  and  Intelligence  data         gubernatorial  suppon.  is  included  at  (he  end  of  this 
base,  combining  and  coordinating  data  from  local.  document 

sute.  mulu  sate  and  federal  sources. 


The  Governors'  Issues 

INeed  for  Increased 
Educational  Efforts 

The  problem  of  dpjg  abuse  in  our  society  is  related  to  so 
many  bctors  thaqp  caruiot  be  successfully  addressed  by 
any  single  discipline.  A  consistent  exchange  of  informa- 
tion and  ideas  among  the  various  disciplines  that  can 
affect  consumer  demarui  does  not  exist.  The  ultimate 
long-term  success  of  drug  control  efforts  is  not  possible 
without  a  marriage  of  these  disciplines,  supported  by  an 
educated  and  involved  public. 


Each  state  should  consider  the  establishment  of  a  Blue 
Ribbon  Statewide  Drug  Education  G>minission  involving 
leaders  from  the  public  and  private  sectors.  This 
Commission  should  consist  of  high-level  representatives 
from  a  cross  seaion  of  disciplines  including  law 
enforcement,  prosecution,  judicial,  educational,  medical, 
legislative  and  citizen/parent/young  people  groups. 

Implementation  Strategy 

Q  Each  governor  should  consider  appointing  representa- 
tives from  a  cross  section  of  the  public  and  private 
sectors  to  a  Statewide  Drug  Education  Commission.  It 
is  imperative  that  the  membership  comprising  this 
Commission  be  commined  to  and  aggressive  toward 
accomplishing  the  goals  established  by  this  recom- 
mendation. The  Commission  should  direct  efforts 

-  Private  Industry:  Providing  crime-specific  informa- 
tion, identifying  industry  prevention  programs  and 
fiinding  sources,  and  integrating  mutual  industry/ 
citizen.' enforcement  activities. 

-  Public  Awareness  and  Concern:  Coordinate  and 
organize  citizer«'  groups  and  programs^  develop 
citizens'  prevention  program  modgk;  de\'elop  media 
campaigns'  "technology  transfers";  and  integration 
with  civic  and  church  groups,  industry,  education 
and  enforcement.  The  Commission  should  consider 
the  'Texas  War  on  Drugs "  program,  which  has 
established  itself  as  a  model  in  this  area. 

-  Public  School  Education:  Assist  the  Department  of 
Education  in  developing  and  presenting  more 
relevant,  positive  and  proactive  curricula  in  law- 
related  education. 

-  Law  Enforcement.  Community  Organizations  arut 
Neighborhood  Coordination:  Provide  training  to  bw 
enforcement  personnel  in  order  to  promote  more 
effeaive  integration  of  enforcement  agencies  with 
community  educational  activities.  Existing  crime 
prevention  and  other  local  networks  should  be 
recognized  and  used. 

a  Governors  should  urge  that  a  national  effort,  ade- 
quately staffed,  be  undertaken  to  develop  program 
models  and  information  services  for  the  individual 

□  Governors  should  urge  that  the  federal  government 
develop  and  implement  a  national  education  program. 
In  this  regard,  the  President  has  recommended  that 
emphasis  be  placed  on  training  of  state  and  local  law 
enforcement  personnel.  Governors  should  be  encour 
aged  to  support  this  initiative. 

Fiscal  Impact 

The  fiscal  impaa  of  educational  efforts  can  be  minimized 
by  turning  to  the  private  sector  for  executive  resources, 
fund  raising  activities  and  creative  talent.  Membership  on 
the  Blue  Ribbon  Commissions  would  be  voluntary.  States 
could  also  save  rcsoures  by  promoting  drug  education 
through  existing  citizen  networks,  such  as  those  address- 
ing crime  prevention. 

2  Need  for  Intensified  Eradication 
and  Interdiction:  Military/Naval 
Assistance  to  State  and  Local 

The  federal  government  has  exclusive  responsibilit>'  for 
coordinating  interdiction  of  drug  shipments  from  foreign 
countries  and  assisting  those  countries  in  the  eradication 
of  drugs  at  the  source.  As  a  result  of  intensive  lobbying, 
three  significant  developments  have  occurred  over  the 
past  year  that  have  had  a  positive  impact  on  eradication 
and  interdiction  efforts:  ( 1 )  relaxation  of  the  Posse 
Comitatus  doctrine,  allowing  the  miliury  to  provide 
assistance  to  civilian  law  enforcement  agencies;  (2)  the 
removal  of  the  Fttry  Amendment  to  the  Foreign 
Assistance  Act,  which  prohibited  foreign  govemments 
from  receiving  assisunce  from  the  U.S.  government  if 
herbicides  were  used  to  control  illicit  drugs,  and  (3)  the 
recent  efforts  made  by  the  national  administration  to 
suppon  eradication  efforts  in  foreign  countnes. 


The  federal  government  should  adopt,  as  its  top  drug 
control  prionry,  the  eradication  of  illicit  drugs  in  source 
countries  and  the  interdiction  of  drugs  leaving  those 

The  United  States  should  continue  encouraging  foreign 
govemments  to  employ  eradication  methods,  including 
herbicidal  applications,  and  should  continue  to  absorb  or 
contribute  to  the  costs  of  some  of  the  more  critical 
programs  in  significant  source  countries  In  addition,  the 
militarv-  forces  of  the  United  States  should  be  called  upon 
to  make  a  ma/or  commitment  to  their  level  of 
suppon  in  the  interdiction  effort. 


Implemcntatloa  Stntegy 

D  GoMcmors  should  consider  adopcmg  a  resolution  to 
Gjngrtss  and  the  President  to  lu^e  the  federal 

-  to  keep  as  one  of  its  top  drug  control  pnonty 
programs  the  eradication  of  drugs  at  source  coun- 
tnes  and  to  continue  to  provide  adequate  funding  in 
subsequent  years 

-  to  de\«lop  improved  eradication  techniques. 

-  to  continue  to  conmbuie  to  the  cost  of  these 
control  efforts. 

-  to  continue  to  ericouiage  other  countries  to  utilize 
eradication  methods. 

□  Keeping  in  mind  the  tremendous  increase  of  domesti 
cally  grcA^-n  manjuana  and  clandesiine  manufiurture  of 
dangerous  drugs,  governors  should  support  eradication 
effbtrs  and  the  development  and  application  of 
inncAauve  measures  within  their  states  to  combat 
these  activities. 

a  Gcnemots  should  urge  the  nauonal  administration  to 
e>qnnd  the  role  of  the  military  forces  of  the  United 
States  in  air  and  sea  interdiaion  efforts  This  increased 
role  should  include  all  regions  of  the  country 

a  Governors  should  encouiage  their  sute  and  local  law 
enforcement  agencies  to  work  closely  with  and  seek 
assistatKe  from  the  military  forces  of  the  United  States 
and  develop  plans  with  military  forces  to  coordinate 
efforts  against  drug  trafficking. 

O  Governors  should  etKOuragc  their  respeaive  congres- 
sional delegations  to  provide  sufficient  funding  to  the 
militan,'  to  offset  the  costs  im-olved  in  panicipating  in 
civilian  drug  control  efforts. 

□  The  governors  should  consider  having  the  National 
Guard  and  all  other  approprute  resources  work  with 
state  and  local  law  eniforcement  agencies  in  drug 
interdiction  and  eradication  programs. 

RacaJ  Impact 

Sates  implementing  eiadication  efforts  will  experience 
costs  Cooperation  with  federal  eradication  efforts  is 
encouraged  to  minimize  those  expenditures.  Costs  may 
also  be  associated  with  National  Guard  activities  aimed  at 
assisting  state  drug  law  enforcement  These  costs  can  be 
minimized,  or  possibly  eliminated,  by  conduaing 
Natiorul  Guard  drug  enforcement  activities  in  conjunaion 
wnih  tegular  Guard  training  e.xercises. 

%J  Need  for  A  National  Reaction 

Over  the  past  detade.  numerous  sutes  liave  been  hun  bv 
the  growing  drug  problem.  These  states  have  taken 
independent  steps  tc  i  ombat  the  problem,  however,  their 
resource  limiutions  and  geographic  restrictions  have 
hindered  the  states'  effeaiveness  The  fiederal  govern 
ment.  realizing  the  national  ramifications  of  the  drug 
problem,  has  conducted  several  significant  operations  that 
have  lessened  these  restriaions  and  limitaiioas,  such  as 
the  recent  Bush  Task  Force  m  South  Flonda  and  the 
creation  of  twelve  regional  task  forces. 


The  federal  government  should  be  encouraged  to 
maintain  on  a  permanent  basis  the  federal  resources 
associated  with  the  onginal  Bush  Task  Force  and  twelve 
new  task  forces 

Implementation  Strategy 

0  Each  governor  should  urge  his  her  respective  congres- 
sional delegation  to  maintain  and  continue  support  of 
the  onginal  Bush  Task  Force  and  the  twelve  new 
regional  drug  task  forces. 

D  The  governors  should  urge  that  top  White  House  and 
justice  officials  meet  twice  yearly  with  seleaed 
govemors  from  the  NGA  to  discuss  policy  issues  of 
mutual  interest  related  to  drug  trafficking 

a  Govemors  should  suppon  the  Presidential  Commis- 
sion on  Organized  Crime,  which  will  be  in  operation 
for  three  years.  Membership  of  this  commission 
should  include  a  representative  of  the  NGA. 

a  Govemors  should  request  the  Department  of  Justice  to 
include  state  representatives  having  policymaking  or 
operational  responsibilities  in  drug  enforcement  on 
the  internal  group  responsible  for  adminisienng  the 
regional  task  forces.  Further,  that  these  representatives 
have  appropriate  decisionmaking  status  in  the  group 
within  parameters  of  state  related  responsibilities. 
Further,  that  each  governor  should  appoint  a  state  drug 
enforcement  coordinator  to  meet  with  the  lead 
administrator  of  the  respeaive  task  force  on  a  specific 
periodic  basis. 

O  The  govemors  should  communicate  with  their  respec 

tive  state  and  local  law  enforcement  officials  to  aaivelv 

suppon  the  President's  initiative 
D  Govemors  should  consider  aaively  soliciting  public 

suppon  of  these  initiatives  through  speeches,  media 

and  other  public  information  resources 
O  Govemors  should,  through  their  respective  legisla 

tures.  ensure  that  adequate  resources  are  available  for 

states  to  coordinate  effeaiveh'  with  and  complement 

the  federal  task  force  efforts. 

Fiscal  Impact 

Each  state  must  analyze  its  investments  to  ensure  that  it  is 
taking  a  balanced  approach  to  drug  law  enforcement  .\ 
aate's  investment  prionties  should  reflect  the  seriousness 
of  the  drug  problem  in  tliat  sute 


4  Need  for  A  Centralized  Informa- 
tion and  Intelligence  Data  Base 

Law  enforcemeni  agencies  involved  in  drug  control  have 
historically  been  hampered  by  lack  of  accessible  and 
assessable  intelligence  informauon  relating  to  illegal 
trafficking.  A  centralized  system  to  receive,  analyze  and 
disseminate  information  among  state  and  local  law 
enforcement  agencies  must  exist  if  proaaive,  non- 
duplicauve  and  significant  targeting  efTorrs  are  to  occur. 
Such  a  system  must  intetaa  with  similar  SN'stems  in  other 
sates  and  with  the  federal  government. 


Each  state  must  establish  a  centralized  drug-related 
intelligence  system.  To  be  effective,  tlie  individual 
systems  must  ensure  input  from  and  response  to  local 
enforcement  agencies  and  should  interact  consistently 
with  appropriate  state  and  multi-state  systems  and  the 
Drug  Enforcement  Administration's  El  ftiso  Intelligence 
Center  (EPIC). 

Implementation  Strategy 

□  Governors  should  direct  their  primary  suie  drug 
enforcement  agency  to  begin  the  development  of  a 
sutewide  drug-related  intelligence  system,  with  analy- 
sis and  targeting  capabilities.  These  systems  should  be 
joined  with  the  other  appropriate  state,  multi-state  and 
fedeial  intelligence  systems. 

-  Sates  that  possess  such  systems  should  share 
concepts,  ideas  and  technologies  with  other  states. 

-  States  should  ensure  that  these  systems  provide  the 
iriformation  to  all  local  bw  enforcement  agencies 
within  their  respeaive  states. 

-  The  individual  states  should  ensure  that  their 
systems  are  linked  with  appropriate  systems  in  other 
states,  as  well  as  with  multi-state  and  federal 
intelligence  systems. 

a  Governors  should  recommend  that  their  appropriate 
law  enforcement  agencies  de\elop  a  mandatory  drug 
statistics  reporting  system  relev'ant  to  the  measurement 
of  the  drug  problem  and  the  impact  of  enforcement 

Hscal  Impact 

Costs  associated  with  establishing  or  enhancing  state 
intelligence  systems  will  van-  from  state  to  state. 
Purchasing  a  new  computerized  system,  irKluding  both 
hardware  and  software,  is  an  expensive  process.  Where 
computer  systems  are  already  in  place,  such  as  in  those 
states  where  responsibility  for  collecting  UCR  data  is  at 
the  state  level,  costs  may  be  limited  to  de-zeloping 
necessary  software.  Some  personnel  enhancements  may 
also  be  necessary. 

5  Need  for  Concerted 
Street  Enforcement  Activity 

Local  law  enforcement  agencies  must  provide  the 
immediate  response  to  a  variety  of  community  demands 
for  crime  control.  It  is  difficult  for  those  agencies  to 
dedicate  already  strained  resources  to  proactive  drug 
prevention  and  enforcemeni  problems.  Howe\'er,  the  real 
direct  and  indirect  drug  related  crimes  must  be  dealt  with 
constantly  as  a  part  of  the  required  law  enforcement 
response  to  the  community  This  response  is  as 
adamantly  demanded  as  are  responses  to  violent  crime 


Governors  and  legislators  of  the  \-arioiis  states  should 
apply  maximum  suppon  and  effort  toward  increasing 
resources  (personnel  and  equipment)  of  local  law 
enforcement  agencies. 

Uuplementacion  Strategy 

□  Governors  should  consider  alternative  funding  options, 
such  as  private  sources  (,  etc.)  or  via 
legislati%-e  mechanisms  such  as  fine  and  forfeiture 
allocations  specifically  earmarked  for  drug  control 
enforcement  programs. 

D  Gov'emors  should  promote  adequate  federal  and  state 
suppon  of  local  law  enforcement  agencies.  Because 
the  drug  problem  is  one  of  national  scope,  federal 
resources  are  needed  to  suppon  critical  or  extraordi- 
nary state  and  local  enforcemeni  efforts  Governors 
should  also  stress  to  local  leaders  their  suppon  for  the 
allocation  of  needed  resources  to  conduct  drug 
enforcement  programs,  loint  operations  and  coopera- 
tive efforts. 

Fiscal  Impact 

State  government  statistical  systems  must  provide  gover- 
nors with  adequate  assessments  of  local  drug  trafficking 
problems.  Resource  suppon  will  \ary  from  state  to  state 
depending  upon  the  magnitude  of  the  problem,  i.e.. 
border  state,  source  state,  major  distribution  point,  etc 
Governors  should  assess  e.xjsting  investments  to  ensure 
they  are  addressing  the  problem  as  a  priont\'  matter.  In 
particuli-.  border  states  must  dedicate  a  portion  of 
available  new  resources  to  the  pnontv-  problems  of  drug 
trafficking  and  distribution. 


O  Need  for  Standard  Legislation 

There  is  great  dispanrv-  among  the  sutes  drug  laws  There 
IS  evidence  that  smuggling  orgonizauons  have  taken 
advanuge  of  some  sates  deficiencies  in  legal  recourse 
and  probabilities  of  detecnon.  apprehension  and 


Each  state  should  establish  a  legislative  comminee  of 
prosecutive,  enforcement,  ludicial  and  legislative 
members  to  examine  and  develop  a  comprehensive 
svstem  of  model  and  uniform  laws  dealing  with  the  drug 
problem  The  sute  bar  issociations  and  law  schools 
should  be  included  in  this  effort  This  conuninee  can  be 
a  separate  entiry-.  or  a  pan  of  an  existing  sutewide  drug 

Implementation  Strategy 

a  The  Governors  should  consider  the  establishment  of  a 
committee  opeiaung  within  their  rcspcaive  states  to 
examine  existing  legislation  and  determine  that  state's 

□  A  National  Comminee  should  be  created,  reporting  to 
the  NG\  GDmminec  on  Criminal  Justice  and  Public 
ProteCTion  This  committee  will  develop  a  comprehen- 
sive svstem  of  model  and  uniform  laws  dealing  with 
the  drug  issue  and  will  disseminate  the  model  drug 
legislauve  package  back  to  the  respeaive  states  for 
their  considerauon. 

n  The  Goviemors  should  sec  that  the  federal  government 
assign  appropriate  representauves  to  this  National 
Comminee  to  promote  uruformitv'  of  state  and  fedeial 
laws  and  serve  as  a  mechanism  to  transmit  states 
cofKems  to  the  federal  legislative  process 

Q  The  Nauonal  Comminee  should  consider  at  least  the 
following  Items  for  the  model  legislative  package: 

-  Racketeer  Influenced  and  Corrupt  Organizations  Act 
(RICO)  providing  for  the  prosecution  of  entire 
cnminal  organi2ations  and  civil  forfeiture  of  real  and 
personal  propertv'  used  in  the  course  of,  or  acquired 
with  the  proceeds  of.  their  criminal  activities. 

-  Drug  Trafficking  Lou's  providing  appropriate  sen- 
tences for  drug  violators  and  a  graduating  scale  of 
penalties  commensurate  with  the  seriousness  of  the 
viobtion.  and  permming  considerauon  of  foreign 
felony  drug  convictions  in  sentencing  drug  law 

-  Vtretaps:  providing  for  court-authorized  intercep- 
tion of  telephonic  communications  between  drug 
bw  V  lobtors. 

-  Mutual  Aid:  providing  for  definitions  of  interjurlsdic- 
uonal  authoniies.  liabilities,  agreements  and  re 
source  exchanges  within  and  among  the  vanous 

-  Mandatory  Reporting  of  Currency  Transactions 
requiring  financial  institutions'  reporting  of  certain 
transaaions  to  the  states  The  statute  of  limitations 
must  provide  sufficient  time  to  allow  full  use  of 
complex  law  enforcement  techniques  before  arrest 

-  Conspiracy  Prmtsions  providing  for  charging  those 
who  direct  or  participate  in  drug  smuggling  ventures 
to  be  sentenced  as  principals 

-  Mandatory  Reporting  of  Drug  Statistics  to  a  central 
entity  both  within  the  states  and  at  the  federal  level 
to  reduce  duplicate  reporting  and  to  establish  a 
valid  data  base  for  problem  assessment  and  resource 

-  Contraband  and  Asset  Forfeiture  Reform  with 
application  of  fines  and  forfeitures  being  applied 
directly  to  law  enforcement  programs,  i  e.,  through 
trust  funds. 

-  State  Department  of  Reienue  Files  Access:  providing 
for  access,  vvith  appropriate  safeguards,  by  bw 
enforcement  agencies. 

-  Vitness  and  Victim  Protection:  providing  authority 
and  funding  required  and  making  it  an  offense  with 
significant  punishment  to  annoy  or  iniure  a  witness 
or  viaim  involved  in  the  criminal  lu-stice  process. 

-  Bail  Reform:  to  more  certainly  immobilize  drug 
traffickers  with  less  jvxlicial  discretion,  i.e.,  where 
smugglers  are  known  to  travel  internationally  or 
where  violence  is  predictable. 

D  Governors  should  urge  tfut  the  Congress  remove 
restnaions.  with  appropriate  safeguards,  that  prevt;nt 
the  Internal  Revenue  Service  from  sharing  intelligence 
regarding  criminal  activities  with  state  and  local 

D  The  President  has  asked  the  Congress  to  continue  its 
efforts  to  seek  passage  of  essential  cnminal  law 
reforms  The  specific  bws  mentioned  were  bail  reform, 
forfeiture  of  assets,  sentencing  reform  and  amendments 
to  the  exclusionary  rule  The  governors  should 
consider  supporting  the  Presidents  initiative  in  seeking 
passage  of  these  essential  reforms  and  ensure  that 
these  issues  are  coordinated  with  similar  state  legisb 
tion  reform  efTotts. 

Fiscal  Impact 

There  are  minimal  state  costs  associated  with  this  activitv. 


7  Need  for  Greater 
Prosecutorial  Coaunitment 

Prosecutors  are  hindered  by  heavy  court  dockets  and 
broad  responsibilities  that  make  it  difficult  for  them  to 
dedicate  resources  to  the  prosecution  of  major  drug 
smuggling  operations.  Alternative  approaches  to  drug 
prosecution  and  better  coordination  among  circuits 
dealing  with  multi  jurisdictiorul  organizations  are  needed. 
Prosecutors  should  take  steps  to  expedite  drug  enforce 
ment  cases,  as  has  been  done  successfully  in  cases 
involving  career  criminals.  Additional  resources  are 
needed  for  prosecution  of  highly  financed  and  well- 
defended  drug  organizations. 


Governors  of  the  various  states  are  urged  'o  eiKOurage 
prosecutors  to  include  drug  cases  as  a  pan  of  their 
lurisdiction's  priority  prosecution/career  criminal 

Governors  should  develop  programs  that  will  anraa  and 
retain  competent  prosecuting  anomeys. 

Implementation  Strategy 

D  Governors  should  seek  strong  commitments  from  their 
respective  legislatures  to  ensure  that  prosecutive 
offices  are  given  the  necessary  support  to  recruit  and 
retain  qualified  prosecutors  for  specific  assignment  to 
drug  cases. 

D  Governors  should  urge  that  state  prosecutive  officials 
coordinate  with  federal  task  forces  and  U.S.  Attomeys 
to  minimize  duplicative  efforts  and  maximize  the 
impact  of  prosecutive  efforts.  This  effort  should 
include  the  newly  established  Law  Enforcement 
Coordinating  Comminees  (LEGO  and  other  recog- 
nized processes  created  to  prc-ide  muiiial  federal, 
state  and  local  assistance. 

□  Governors  should  encourage  state  and  local  prosecu- 
tors to  assume  leadership  in  the  development  and 
coordination  of  priority  drug  investigative  efforts  and 
priority  prosecution  strategies,  and  urge  implementa- 
tion of  special  judicial  processes  that  guarantee  fair 
and  speedy  adjudication  of  major  drug  cases. 

Fiscal  Impact 

Direa  state  jurisdiction  over  prosecution  responsibilities 
vary  from  state  to  state  Where  career  criminal  programs 
have  been  implemented  throughout  the  state,  major  drug 
cases  should  be  handled  on  the  same  expedited  basis  as 
a  way  of  establishing  pnonties  and  minimizing  expendi- 
tures associated  with  prosecution.  This  effon  should 
include  development  and  implementation  of  procedures 
for  handling  prosecution  of  both  career  cnminal  and 
maior  drug  trafficking  cases  on  a  priority  basis.  Where 
prosecution  is  a  shared  responsibilitv'  of  the  state  and 
local  governments,  all  levels  should  work  together  to 
expedite  the  prosecution  of  career  criminals  and  drug 
trajficking  cases  Most  costs  associated  with  a  new 
emphasis  on  the  prosecution  of  drug  cases  will  be  for 

8  Need  for  Coordination  of 
Efforts  of  Local  Agencies 

There  is  generally  no  mechanism  to  provide  for 
local/State  agencies  to  pool  their  resources  and  work 
together  on  common  drug  targets.  Equipped  with  the 
necessary  legislation,  agencies  can  draft  contractual 
agreements  to  effect  "joint  force  operations"  or  "mutual 
aid  pacts '  to  expand  resource  and  jurisdictional  abilities 
to  attack  drug  operatives. 


The  varioiis  states  should  consider  development  of 
necessary  legislation  to  develop  a  'mutual  aid  system ', 
whereby  law  enforcement  agencies  can  contraaually  join 
together  and  pool  their  knowledge,  resources  and  skills 
toward  investigatively  attacking  drug  smuggling  networks. 

Implementation  Strategy 

O  The  Governors  should  coasider,  as  referenced  in  the 
legislauve  reform  section,  the  development  of  'mutual 
aid  "  legislation  to  ensure  that  the  law  enforcement 
agencies  within  and  among  the  various  states  can 
contraaually  join  together  to  effect  joint  force 

O  The  Governors  should  ensure  that  the  lead  state  law 
enforcement  agency  coordinates  with  local  law 
enforcement  agencies  so  that  their  operational  con 
cems  and  initiatives  are  effectively  coordinated  with 
federal  task  force  efforts. 

Fiscal  Impact 

Development  of  "mutual  aid"  systems  will  require  a 
dedication  of  time  by  existing  personnel  and  minimal 
suppon  resoLirces. 

Additional  Presidential  Initiatives 

In  addition  to  the  recommendations  made  by  the 
President  that  have  been  included  in  the  previous 
discussions,  the  following  presidential  initiatives  are  also 
worthy  of  strong  support  by  the  NGA 

O  The  President  has  called  for  a  Cabinet  level  Commmee 
on  Organized  Cnme,  chaired  by  the  .-Mtomey  General, 
to  review  and  coordinate  all  federal  efforts  against 
organized  cnme 

n  The  President  has  requested  thai  the  Anomey  General 
prepare  an  annual  report  to  the  Amencan  people  to 
report  on  progress  and  needs  in  the  drug  fight. 

D  The  President  has  requested  that  additiorul  pnson  and 
pil  space  be  provided  to  meet  the  need  caused  by  the 
creation  of  the  rwelve  task  forces. 

a  The  President  recommends  that  emphasis  be  placed 
on  training  of  state  and  local  law  enforcement 


gepartmtnl  of  |uslite 



TUESDAY,  MARCH  1,  1983  202-633-2007 

Attorney  General  William  French  Smith  today  issued  the 
following  statement 5 

The  National  Governors'  Association  deserves  the  hearty  thanks 
of  the  American  public  for  the  far-reaching  policy  positions 
unanimously  adopted  in  its  plenary  session  today  in  support  of  the 
Reagan  Administration's  new  initiatives  to  combat  drug  trafficking 
and  organized  crime. 

Together,  the  positions  form  an  overall  program  that  recognizes 
the  partnership  approach  necessary  to  make  major  inroads  against 
crime  —  especially  drug  trafficking  and  the  enormous  aunount  of 
violent  crime  it  causes. 

This  partnership  of  the  states  and  the  Federal  government  is  an 
integral  element  of  the  program  announced  by  President  Reagan  last 
fall  to  take  unprecedented  steps  against  organized  drug  trafficking. 

Now  that  the  Governors'  Association  has  responded  in  kind,  we 
have  an  opportunity  of  historic  dimensions  in  the  struggle 
crime  and  lawlessness. 

On  Sunday,  I  participated  in  the  discussions  of  the  Associa- 
tion's Committee  on  Criminal  Justice  and  Public  Protection,  citing 
the  key  portions  of  the  President's  new  initiative  —  including  Drug 
Task  Forces,  a  Presidential  commission  on  organized  crime,  expanded 
training  at  a  Federal  facility  for  state  and  local  enforcement 
personnel,  and  major  criminal  law  reforms. 

I  also  discussed  in  detail  the  Governors  Project  —  which  is  at 
the  heart  of  the  President's  efforts  to  develop  new  levels  of 
cooperations  with  the  governors  and  the  states. 

The  Governors  Project  provides  a  forum  for  the  Governors  to 
give  us  their  ideas  and  concerns. 

It  will  help  to  coordinate  the  efforts  by  Federal  law  enforce- 
ment agencies  with  their  state  and  local  counterparts. 

25-694  0-84-18 


And  it  is  now  operational.  Already,  meetings  have  been  held, 
more  meetings  are  scheduled,  and  a  steady  flow  of  information 

between  the  Federal  government  and  the  Governors  has  begun  

including  the  first  copy  of  a  weekly  organized  crime  report  from  the 
Justice  Department  to  the  Governors  that  was  distributed  on  Sunday. 

The  Governors  Project  has  been  set  up  at  the  highest  levels  in 
the  Justice  Department  —  headed  by  Assistant  Attorney  General 
Jonathan  Rose,  with  Edward  McNally  as  project  director.   Their  job, 
the  job  of  the  entire  Department,  is  to  serve  the  Governors.   It  is 
an  exercise  in  efficiency,  not  bureaucracy. 

All  of  us  in  Federal  law  enforcement  are  delighted  at  the  steps 
now  taken  by  the  Governors'  Association.   We  are  particularly 
pleased  at  the  Association's  own  Governors  Project,  developed  to 
parallel  the  Federal  initiative. 

The  Governors  have  pledged  to  cooperate  with  the  Administra- 
tion's drug  trafficking  and  organized  crime  program  and  have 
commended  the  President's  creation  of  it. 

We  applaud  the  specific  steps  taken  by  the  Governors  — 
including  proposals  to  develop  uniform  state  drug  laws,  greater 
street-level  enforcement,  greater  commitment  for  prosecution 
agencies,  and  more  coordination  among  local  and  state  agencies.   The 
Governors'  commendation  of  the  Administration's  efforts  to 
strengthen  the  U.S.  Criminal  Code  is  especially  critical  and  we  will 
call  on  their  support  for  our  renewed  Federal  reform  efforts  in  the 
current  Congress. 

The  President  and  his  Administration  are  fully  committed  to 
winning  this  war  on  drugs  and  organized  crime. 

During  our  discussions  on  Sunday,  1  was  impressed  with  the 
depth  of  the  commitment  by  the  governors  who  aired  their  views  — 
particularly  Charles  Robb  of  Virginia,  the  Criminal  Justice 
Committee  chairman;  and  Robert  Graham  of  Florida,  Lamar  Alexander  of 
Tennessee,  and  Richard  Thornburg  of  Pennsylvania. 

By  working  together,  we  can  make  a  difference  —  at  the 
Federal,  state  and  local  levels.   And  that  can  mean  significant 
improvements  in  the  level  of  safety  for  all  of  the  American  people. 


Responses  of  Governor  Robb  to  Questions  of  Senator  Laxalt 
discuss  the  use  of  private  enterprise  dm  prisons. 

Several  state  prison  systems  are  involved  in  some  type  o£  prison  industry. 
The  sizes  and  types  of  industry  differ.   The  organizational  structure  and  training 
procedures  also  vary  according  to  the  industry.  Some  states  are  entering  into 
agreements  with  certain  industry  whereby  the  industry  provides  training  and 
equipment  to  the  inmates,  and  the  state  is  responsible  for  management  and  inmate 
supervision.   A  good  example  is  the  Stillwater  prison  in  Minnesota,  where  prison 
industries  are  supported  by  the  Control  Data  Corporation.   These  industry  programs 
are  operating  within  prison  walls. 

There  are  other  prison  industry  programs  where  inmates  cire  released  to  work 
outside  in  industry.   The  prison  administration  continues  to  supervise  inmates. 
These  programs  usually  allow  inmates  to  leave  the  prison  walls  for  work  during  the 
day,  and  return  for  supervision  at  night  and  all  non-working  time.  Of  course,  the 
classification  of  these  inmates  is  very  low,  so  they  are  not  a  threat  to  the 
community.   A  good  example  of  a  program  operating  on  this  scale  is  in  the  state  of 

Another  use  of  private  enterprise  is  through  contractual  services.  Some 
state  prison  systems  operate  food  services  and  medical  services  on  a  contractual 
basis.   Service  providers  sometime  use  inmate  help,  but  they  are  paid  wages 
comparable  to  those  paid  outside  of  the  prison  walls.   Pennsylvania  uses  private 
contractors  to  provide  food  service  in  some  of  their  penal  institutions. 

There  have  been  discussions  in  some  states  about  leasing  private  property  for 
use  as  prison  facilities,  but  1  am  not  aware  of  any  major  initiatives  in  this  area. 
However,  it's  worth  exploring  and  has  potential  for  saving  resources,  esjjecially  on 
cost  of  property  and  some  building  and  equipment. 


The  structure  of  a  sentencing  commission  will  more  than  likely  be 
determined  by  the  state  legislature  and  become  a  function  of  state  law.   In  some 


states,  Minnesota  for  example,  the  state  law  not  only  defines  sentences,  but  also 
determines  the  capacity  of  the  state  penal  institution.   In  this  circumstance,  the 
sentencing  commission  can  operate  knowing  that  bed  space  is  available  for  a 
particular  sentenced  felon. 

Commissions  operating  under  the  judiciary  usually  attempt  to  structure 
sentences  within  the  confinements  of  present  state  law  so  that  there  is  more 
uniformity  in  the  administration  of  sentences,  and  some  rationale  for  deviations. 
This  is  accomplished  through  regular  meetings  of  the  Commission.    Maryland's 
Sentencing  Commission  is  administered  by  the  judiciary. 

Governors  have  generally  been  involved  by  appointing  task  forces,  as  I  have 
done  in  Virginia,  to  examine  the  overall  sentencing  policy  in  the  state  and  make 
recommendations  for  change.   These  task  forces  should  be  balanced  with  judicial, 
and  legislative  representation,  as  well  as  the  private  sector  and  citizen 
representation  —providing  a  broad  base  for  promoting  the  recommended  changes  of 
the  task  force. 


The  Writ  of  Habeas  Corpus  should  not  be  denied  to  anyone,  and  any  attempt 
to  do  so  would  probably  be  unconstitutional. 

However,  title  28  of  the  United  States  Code  could  be  amended  to 
accommodate  some  of  the  habeas  corpus  concerns.   The  Criminal  Justice  Report  of 
the  National  Association  of  Attorneys  General  recently  pointed  out  several  sections 
of  title  28  that  could  be  amended  to  accommodate  these  concerns.   The  first 
proposal  would  be  to  amend  28  U.S.C.  section  224*  to  prevent  litigation  of  issues  in 
federal  court  if  not  properly  raised  in  state  court  proceedings.   This  would  codify 
the  Supreme  Court's  decision  in  Wainwright  v.  Sykes,  433  U.S.  72  (1977),  which 
barred  the  litigation  of  issues  not  properly  raised  in  state  court  unless  "cause  and 
prejudice"  is  shown  for  failing  to  comply  with  state  court  procedures.   Requiring 
that  issues  must  be  raised  in  the  state  court  system,  absent  special  circumstances, 
is  the  only  fair  and  sensible  approach  to  the  administration  of  the  criminal  justice 

Another  proposal  would  amend  title  28  U.S.C.  to  create  a  reasonable 


limitation  of  time  within  which  to  bring  a  habeas  corpus  petition.   This  amendment 
is  essential  in  order  to  bring  finality  to  judgments  of  state  courts.   Frequently, 
prisoners  wait  many  years  before  bringing  a  habeas  corpus  action  seeking  to  set 
aside  the  judgment  and  sentence.  In  such  instances,  witnesses  have  died,  or  other 
unusual  circumstances  render  the  state  incapable  of  refuting  the  prisoner's 
testimony  and  as  a  consequence,  he/she  prevails. 

Finally,  title  28  U.S.C.  could  be  amended  to  prevent  federal  courts  from 
holding  evidentiary  hearings  if  the  state  courts  have  fully  and  fairly  determined  the 
evidentiary  issue.  This  proposal  would  help  eliminate  duplicative  hearings- 


Under  the  verdict  of  "guilty  but  mentally  ill,"  a  jury  holds  a  person 
responsible  for  his  actions  under  the  law,  yet  recognizes  that  the  individual  is 
mentally  ill.   The  individual  is  sentenced  under  criminal  law  for  his  action.   Once 
the  individual  is  incarcerated,  an  evaluation  is  performed  at  corrections  intake 
center  to  determine  mental  status.   If  the  person  is  found  in  need  of  treatment,  he 
is  sent  to  the  mental  hospital  for  such  time  as  needed  for  treatment  during  the 
process  of  serving  time  for  the  offense  he  committed.   If  during  the  sentence  the 
individual  is  found  to  be  mentally  sound  again,  he  is  transferred  to  the  department 
of  corrections  to  serve  out  the  sentence. 

Once  the  individual  has  completed  his  sentence,  he  is  released  under  the 
same  provisions  as  other  parolees.   However,  if  there  is  reason  to  believe  that  the 
individual  continues  to  suffer  from  a  mental  illness,  then  the  state  can  enter  civil 
proceedings  to  have  the  individual  committed  or  continued  in  the  state  mental 

"Guilty  by  reason  of  insanity  with  automatic  commitment"  would  allow  an 
individual  to  be  committed  to  a  mental  institution  indefinitely  for  a  particular 
offense.   The  individual  becomes  a  ward  of  the  state  mental  hospital  for 
observation  and  treatment  in  accordance  with  hospital  procedures. 

Some  legal  scholars  argue  that  the  verdict  of  "guilty  by  reason  of  insanity 

with  automatic  commitment"  could  violate  the  civil  liberties  of  the  committed 
individual.    For  example,  an  individual  found  "guilty  by  reason  of  insanity"  could  be 
committed  for  an  indeterminate  number  of  years,  whereas  the  normal  sentence 
would  be  limited  by  criminal  law. 

Under  "guilty  but  mentally  ill,"  the  individual  would  serve  a  specified 
sentence  either  in  the  mental  hospital  or  prison,  or  both. 


Senator  Laxalt.  Our  next  witness  will  be  Attorney  General  Zim- 
merman of  Pennsylvania  on  behalf  of  the  National  Association  of 
Attorneys  General. 

General,  we  are  delighted  to  have  you  with  us  and  pleased  to 
hear  your  testimony. 


Mr.  Zimmerman.  Mr.  Chairman,  thank  you. 

It  is  my  pleasure  to  appear  before  the  subcommittee  on  behalf  of 
the  National  Association  of  Attorneys  General  and  testify  in  con- 
nection with  and  in  support  of  the  Comprehensive  Crime  Control 
Act  of  1983,  S.  829. 

I  appear  on  behalf  of  my  colleagues,  on  behalf  of  the  National 
Association  of  Attorneys  General  and  in  support  of  a  number  of  the 
specific  aspects  of  this  particular  package.  My  testimony  reflects  a 
background  of  20  years  as  a  district  attorney  in  Pennsylvania  and  2 
years  as  Pennsylvania's  first  elected  attorney  general  and  statuto- 
rily defined  chief  law  enforcement  officer. 

I  share  your  concerns  and  the  concerns  of  this  subcommittee 
about  this  particular  legislation.  I  know  my  colleagues  do  that  as 

I  would  like  to  incorporate,  at  this  point,  for  the  record  my  writ- 
ten statement  so  that  I  can,  in  order  to  cut  down  on  the  time,  sum- 
marize it  and  make  specific  comments  in  certain  areas  and  certain- 
ly be  available  to  answer  any  questions,  Mr.  Chairman. 

Senator  Laxalt.  Surely.  Our  staff  has  had  an  opportunity  to  ex- 
amine the  full  statement.  I  have  seen  most  of  the  summary.  It  is 
extraordinarily  well  done.  I  appreciate  it. 

Mr.  Zimmerman.  Thank  you. 

With  your  permission  I  would  also  like  to  incorporate  the  testi- 
mony of  my  colleague,  the  attorney  general  from  Florida,  Jim 
Smith,  who  testified  last  year  on  the  urgency  of  the  need  for 
habeas  corpus  reform.  He  did  a  very  scholarly  analysis  that  I  think 
is  still  on  the  record  and  I  would  like  to  incorporate  it  here  with 
your  permission,  as  well  as  the  resolutions  of  the  National  Associ- 
ation of  Attorneys  General  in  this  area. 

Senator  Laxalt.  It  will  be  deemed  incorporated. 

Mr.  Zimmerman.  Thank  you,  Mr.  Chairman. 

The  legislation  proposed  deals  with  the  specifics  and  the  critical 
areas  that  concern  all  of  us  in  law  enforcement  across  this  Nation. 
The  problem  that  we  have  working  in  the  States  and  the  local  gov- 
ernments is  dealing  with  these  things  on  a  day-to-day  basis  and 
dealing  with  what  has  developed,  and  what  I  characterize  as  a 
crisis  of  confidence  in  the  criminal  justice  system  of  our  country. 
We  hear  that  recent  statistics  establish  the  fact  that  there  has 
been  a  decline  in  the  crime  rate,  major  crime  areas  in  this  country, 
and  certainly  I  cannot  quarrel  with  those  statistics.  However,  my 
concern  is  that  we  have  developed  over  a  period  of  time  what  I 
characterize  as  an  acquiescence  quotient  in  the  people  of  America 


in  connection  with  crime.  Americans  have  developed  a  tolerance 
for  crime,  across  the  board  and  almost  now  a  willingness  to  accept 
a  certain  percentage  of  crime  in  our  economic  centers,  on  the 
streets  of  our  Nation,  and  in  other  places  as  well.  I  perceive  that  as 
a  very  dangerous  problem  that  confronts  us  in  this  country  today. 
That  is  why  I  urge  that  this  particular  S.  829  be  expedited  because 
it  deals  with  areas  that  have,  in  my  judgment,  created  this  acquies- 
ence  quotient  on  the  part  of  the  people  in  this  country. 

Senator  Laxalt.  Is  much  of  that  tolerance.  General,  due  to  the 
fact  that  we  in  law  enforcement  on  every  area  simply  are  not  doing 
our  job?  Is  that  part  of  the  problem? 

Mr.  Zimmerman.  I  think  that  is  a  part  of  the  problem,  Mr.  Chair- 
man. I  think  that  we  went  in  this  country  from  a  syndrome  of  "I 
won't  or  don't  want  to  be  involved"  to,  unfortunately,  my  acquies- 
cence quotient,  "Why  get  involved  because  really  there  is  nothing 
they  can  do  about  it?"  They  being  all  of  us  in  the  Congress,  in  the 
States  and  in  law  enforcement  as  well. 

Bail  reform  provided  for  in  this  package  is  an  extremely  impor- 
tant aspect  of  it  because  it  would  provide  that  judges  can  now  con- 
sider the  dangerousness  of  the  criminal  in  considering  bail  and  the 
amount  of  bail  rather  than  the  traditional  test  of  whether  or  not 
this  person  is  going  to  show  up  at  trial.  And  that  has  been,  I  think, 
one  of  the  major  areas  of  concern  on  the  part  of  the  everyday 
person.  They  go  to  court,  they  come  home  from  court.  There  has 
been  a  conviction  and  they  see  the  culprit,  the  defendent,  in  the 
same  supermarket  that  they  are  in  after  a  conviction  because  he  is 
out  on  bail,  or  after  an  arrest  because  he  is  out  on  bail.  I  think  bail 
reform  is — and  I  comment  on  it  first  because  of  my  concern  in  that 
particular  area.  I  think  the  Crime  Control  Act  would  make  crime 
control  a  reality  rather  than  just  another  theory  that  we  deal  with 
day  to  day  and  that  the  people  of  this  Nation  feel  that  we  are  deal- 
ing with  in  a  theoretical  sense.  It  brings  it  down,  to  a  common  de- 
nominator that  I  think  people  understand  in  this  particular  legisla- 

The  National  Association  of  Attorneys  General  supports  a 
change  in  the  exclusionary  rule.  Evidence  that  is  gathered  in  good 
faith  should  be  allowed,  especially  if  it  was  obtained  within  the 
scope  of  a  lawful  warrant  issued  by  an  independent  detached  mag- 
istrate. Because  we  have  seen  time  and  time  again  that  these  kinds 
of  releases,  these  kinds  of  discharges,  these  kinds  of  exclusions  of 
important  evidence,  continue  to  erode  the  confidence  of  people  in 
our  system  of  justice. 

Senator  Laxalt.  Have  you  had  a  lot  of  problems  in  Pennsylva- 
nia, as  most  States  have  had,  with  respect  to  the  exclusionary  rule? 

Mr.  Zimmerman.  Certainly,  Mr.  Chairman.  I  could  sit  here  after 
20  years  as  prosecutor  and  2  years  as  attorney  general  and  give 
you  story  after  story,  and  I  would  be  happy  to  provide  some  of  that 
and  augment  the  record  for  the  information. 

Senator  Laxalt.  I  think  it  might  be  helpful  to  put  some  flesh 
and  blood  on  the  bones  of  this  exclusionary  rule.  I  think  it  helps 
the  members  of  my  subcommittee  who  have  had  experience  with 
prosecution  and  who  think  that  maybe  we  are  overstressing  the  im- 
pK)rtance  of  change  because  the  rule  affects  only  exceptional  situa- 
tions. And  we  are  really  playing  with  horror  stories.  I  happen  to 


believe  that  it  has  become  almost  a  pattern  in  some  of  these  areas, 
and  if  people  like  you  in  the  field  can  point  out  specific  instances  of 
the  effects  of  the  exclusionary  rule — the  present  application  of  it — 
it  would  be  very  helpful. 

Mr.  Zimmerman.  We  will  be  happy  to  provide  some  of  that. 

Mrs.  Mclntyre,  my  colleague,  the  deputy  attorney  general,  has 
been  with  me  in  the  district  attorney's  office  for  many  years.  Again 
we  have  faced  this  problem  and  we  will  be  happy  to  supply  some 
additional  information  to  the  subcommittee. 

[Subsequent  to  the  hearing,  Mr.  Zimmerman  supplied  the  follow- 
ing information:] 

Impact  of  Exclusionary  Rule  on  Criminal  Cases 

Case  1015-82. — On  February  16,  1982,  Pennsylvania  narcotics  agents  and  local 
police  officers  served  an  arrest  warrant  in  Bristol  Township,  Bucks  County,  Pennsyl- 
vania. The  agents  arrested  the  target  individual  and  then  proceeded  to  conduct  a 
search  of  the  arrested  individual's  person  pursuant  to  lawful  arrest.  Inside  the  ar- 
rested person's  right  front  pants  pocket  was  a  small  plastic  bag  containing  a  white 
powder  suspected  to  be  methamphetamine.  There  were  also  in  plain  view  additional 
controlled  substances  and  several  deadly  weapons  displayed  on  the  walls.  Present  at 
the  time  of  the  execution  of  the  arrest  warrant  were  two  apparent  motorcycle  gang 
members.  The  agents  immediately  field-tested  the  white  powder  found  on  the  arrest- 
ed individual  which  indicated  positive  for  methamphetamine.  Based  upon  the  drugs 
seized  from  the  individual's  person  and  the  positive  field  test  as  well  as  the  other 
controlled  substances  in  plain  view,  the  agents  secured  the  area,  returned  to  a  dis- 
trict justice's  office,  and  received  a  search  warrant  for  the  residence  of  the  arrested 
individual.  Seized  pursuant  to  this  search  warrant  was  an  additional  ounce  of  meth- 
amphetamine and  some  marihuana.  On  September  11,  1982,  a  suppression  hearing 
was  held  in  Bucks  County  criminal  court  relative  to  the  execution  of  the  search 
warrant  referenced  above.  The  reason  given  by  the  judge  for  the  suppression  of  the 
evidence  was  that  even  though  a  field  test  was  performed  with  positive  results  on 
the  methamphetamine  found  on  the  arrested  individual's  person,  not  enough  was 
left  for  the  Bucks  County  crime  lab  to  positively  identify  the  remaining  amount  as 
methamphetamine.  The  judge  held  that  the  fact  that  one  ounce  of  methampheta- 
mine was  found  in  the  residence  following  execution  of  the  search  warrant  had  no 
bearing  upon  the  charge  for  possession. 

Case  2084-82.— On  October  2,  1982,  a  Pennsylvania  narcotics  agent  culminated  an 
investigation  begun  approximately  one  month  earlier.  The  agent  had  previously 
purchased  one  ounce  of  cocaine  for  $2,100.00  from  the  subject.  On  October  2,  1982, 
the  agent  was  to  purchase  one-quarter  pound  of  cocaine  for  $6,800,000.  When  he  ar- 
rived at  the  subject's  Delaware  County  residence,  with  the  subject  were  two  addi- 
tional unknown  individuals  who  approached  him  as  he  entered  the  residence  in  an 
attempt  to  search  him  for  weapons.  The  agent  indicated  he  had  a  weapon  and  that 
he  would  place  it  in  his  car  and  return  immediately.  It  was  requested  that  the  agent 
be  allowed  to  test  a  sample  of  the  cocaine  before  the  transaction  was  completed.  The 
agent  remained  seated  in  the  living  room  area  while  the  subject  went  into  the  kitch- 
en area.  When  the  subject  returned  from  the  kitchen  area  he  placed  a  clear  plastic 
bag  containing  a  white  powder  on  the  table  and  removed  a  nail  clipped  from  the 
bag.  When  asked  where  the  rest  of  the  cocaine  was,  the  subject  indicated  that  it  was 
"all  here,"  meaning  in  the  house.  The  field  test  of  the  drug  proved  positive  for  co- 
caine. Discussions  began  concerning  the  price  of  the  cocaine.  Finally,  the  agent  iden- 
tified himself  as  an  officer  and  arrested  the  subject  and  the  two  unknown  individ- 
uals. The  arrested  individuals  were  read  their  rights  after  which  the  agent  request- 
ed the  remainder  of  the  quarter  pound  of  cocaine  be  presented  or  the  agents  would 
search  the  kitchen  area  where  the  subject  went  to  get  the  above  referenced  sample. 
The  subject  indicated  he  did  not  want  his  mother's  home  torn  up  and  the  agent  told 
the  subject  he  could  consent  and  show  the  agents  the  location  of  the  quarter  pound. 
At  approximately  3:25  p.m.  the  subject  verbally  consented  and  instructed  the  agent 
to  come  upstairs.  The  subject  went  to  his  bedroom  and  pointed  to  the  bed  saying, 
"it's  under  there."  The  agent  looked  under  the  bed  and  observed  one  large  plastic 
bag  containing  approximately  four  ounces  of  white  powder  later  identified  as  co- 
caine, a  small  plastic  bag  containing  a  small  amount  of  white  powder  later  identi- 
fied as  cocaine,  two  TV  magazines  with  white  powder  on  them  and  a  spoon.  Again 
the  subject  was  read  his  rights  and  the  agent  removed  the  above-referenced  items 


for  custody.  A  suppression  hearings  was  held  on  January  18,  1983  in  Delaware 
County  court.  The  trial  judge  suppressed  the  quarter  pound  of  cocaine  found  in  the 
subject's  bedroom  in  that  court  believed  that  the  subject's  consent  to  search  was  not 
voluntary.  However,  the  quarter  pound  of  cocaine  was  not  suppressed  as  to  the 
other  subjects  who  were  charged  with  conspiracy  with  the  primary  subject  in  that 
the  court  beleived  they  had  no  expectation  of  privacy  in  the  subject's  home;  there- 
fore, they  had  no  legal  standing  concerning  suppression  of  the  quarter  pound  of  co- 

Case  504J-77.—A  Pennsylvania  narcotics  agent  prepared  a  search  warrant  on 
June  1,  1977  which  stated  that  he  received  information  from  a  confidential  inform- 
ant who  saw,  at  the  place  to  be  searched,  a  very  large  quantity  of  marihuana  and 
methamphetamine  in  possession  of  the  target.  The  informant  stated  that  he  ob- 
served the  target  selling  marihuana  and  methamphetamine  but  the  informant 
wished  to  remain  anonymous  because  of  fears  for  his  personal  safety.  The  informant 
indicated  that  he  saw  numerous  people  buying  drugs  and  that  he  himself  had  in 
fact  very  recently  purchased  one  ounce  of  marihuana  which  he  turned  over  to  the 
agent.  The  informant  indicated  that  the  ounce  of  marihuana  was  purchased  from 
the  target  at  the  location  stated  in  the  search  warrant.  The  place  described  in  the 
search  warrant  was  a  garage.  Found  in  the  search  of  the  garage  was  a  large  plastic 
bag  containing  a  large  quantity  of  loose  marihuana,  a  large  cardboard  box  contairi- 
ing  a  yellow  plastic  bag  containing  a  large  quantity  of  compressed  bale-form  mari- 
huana, a  smaller  cardboard  box  containing  a  white  plastic  bag  full  of  marihuana 
seeds,  a  large  Ohaus  scale  inside  a  cardboard  box,  a  white  cabinet  inside  the  tool- 
room containing  assorted  prescription-type  drugs,  two  clear  plastic  bags  containing 
quantities  of  marihuana,  counter-balance  scales,  and  a  strainer  containing  white 
powder  residue.  On  August  23,  1977,  a  suppression  hearing  was  held  in  Westmore- 
land County  court.  Defense  argued  that  the  agent  had  not  sufficiently  established 
reliability  of  the  informant  and  that  the  address  on  the  face  of  the  search  warrant 
was  incorrect.  Defense  counsel  based  his  later  argument  on  the  case  of  Common- 
wealth V.  Muscheck,  334  A.2d  248  (1975),  which  deals  with  the  issue  of  propriety  of 
address  in  a  warrant.  A  portion  of  the  opinion  indicated  that  unless  the  location  of 
search  was  clearly  distinguished  from  the  residence  of  the  owner,  the  affidavit  was 
ambiguous  and  would  fail.  The  evidence  was  suppressed  despite  the  large  seizure  of 
drugs  by  the  officers. 

Commonwealth  v.  McAfee,  230  Pa.Super.  336  (1974).  Although  a  search  warrant 
was  properly  signed  and  sealed  by  the  district  justice,  the  affidavit  of  probable  cause 
attached  thereto  was  not  so  signed  and  sealed.  This  defect  is  fatal  and  required  the 
suppression  of  all  evidence  seized  during  the  execution  of  the  judicially  authorized 

Commonwealth  v.  Gates,  4  D&C  3rd  239  (1977).  Evidence  obtained  as  a  result  of  a 
search  of  a  residence,  authorized  by  warrant,  was  suppressed  because  the  warrant 
application  failed  to  specify  that  the  evidence  to  be  seized  would  be  removed  or  de- 
stroyed if  not  seized  forthwith. 

Commonwealth  v.  Lovette,  498  Pa.  665  (1982).  Placing  the  defendant  and  his  com- 
panions in  a  police  vehicle  for  the  purpose  of  transporting  them  to  the  scene  of  the 
crime,  without  their  consent  and  without  exigent  circumstances  to  support  such 
action,  constituted  an  illegal  arrest  without  probable  cause  and  required  suppression 
of  the  evidence  linking  the  culprits  to  the  crime. 

Commonwealth  v.  Ball,  254  Pa.Super.  148  (1978).  Police  officers  searched  a  truck 
alleged  to  have  been  involved  in  a  hit  and  run  accident.  The  truck  was  parked  some 
150  yards  from  the  defendant's  home.  The  court  suppressed  the  evidence  seized  on 
the  basis  that  at  the  time  of  the  search  the  vehicle  was  not  so  mobile  that  the  op- 
portunity to  search  was  fleeting. 

Commonwealth  v.  Boyer,  236  Pa.Super.  214  (1975).  Police,  relying  on  confidential 
information  relayed  over  the  state  police  teletype,  stopped  a  vehicle  on  the  Pennsyl- 
vania turnpike  which  matched  the  reported  description.  Observation  of  the  interior 
of  the  vehicle  revealed  packages  of  heroin.  This  evidence  was  suppressed  because 
the  police  officers  did  not  possess  sufficient  probable  cause  to  believe  the  confiden- 
tial information  was  reliable. 

Commonwealth  v.  Novick, Pa. No.  14  M.D.  Appeal  Docket  1982,  (filed 

April  26,  1983).  Relying  upon  the  existence  of  a  Mutual  Aid  Pact,  a  police  officer 
arrested  an  arsonist  and  burglar  in  a  contiguous  jurisdiction.  The  Pennsylvania  Su- 
preme Court  affirmed  the  suppression  of  the  defendant's  confession  and  seized  phys- 
ical evidence  upon  a  determination  that  the  Mutual  Aid  Pact  has  no  force  and  effect 
because  of  improper  execution,  thus  rendering  the  arrest  illegal. 


Mr.  Zimmerman.  You  know,  the  focus  has  been  wrong,  Mr. 
Chairman.  The  focus  has  been  on  what  the  police  are  doing  wrong, 
how  they  have  not  dotted  their  i's  or  crossed  their  t's  in  all  of  this 
when,  in  fact,  the  focus  ought  to  be  on  the  fact  that  this  evidence 
was  presented  by  a  police  officer  who  really  in  the  overwhelming 
number  of  cases  intends  to  do  the  right  thing,  to  follow  the  law 
where  he  can  understand  the  law,  and  that  is  another  area  of  con- 
cern as  well. 

Senator  Laxalt.  The  record  should  note.  General,  the  arrival  of 
someone  whom  you  know  as  a  prosecutor  also  in  the  State  of  Penn- 
sylvania, and  the  junior  Senator  from  the  State  of  Pennsylvania, 
Senator  Specter. 

Senator  Specter.  Thank  you,  Mr.  Chairman. 

With  that  opportunity,  I  will  make  a  very  brief  statement. 

I  regret  that  I  could  not  be  here  at  the  start  of  the  testimony  of 
Attorney  General  Zimmerman,  but  there  is  a  very  hotly  contested 
issue  at  this  moment  in  Veterans  Affairs  on  a  major  matter  that  I 
had  to  be  present  to  make  a  quorum  for  and  to  attend  to. 

Senator  Laxalt.  Everything  in  Veterans  Affairs  is  hotly  contest- 
ed; is  it  not? 

Senator  Specter.  Well,  there  are  very  few  items  on  Capitol  Hill 
which  are  not  hotly  contested. 

Senator  Laxalt.  I  think  you  are  right. 

Senator  Specter.  That  is  both  the  vein  and  the  exhiliration  of 
our  purpose  here.  But  there  is  no  subject  with  greater  importance 
on  my  mind  than  crime.  Senator  Laxalt  and  I  have  worked  on  this 
for  the  past  2  years  and,  as  you  may  note,  Mr.  Chairman,  and  you 
alluded  to,  Attorney  General  Zimmerman  and  I  have  been  working 
in  this  field  since  the  mid  1960's.  He  was  a  very  distinguished  dis- 
trict attorney  of  Dauphin  County  when  I  was  the  DA  in  Philadel- 
phia and  we  have  worked  on  many,  many  projects,  invariably  in 
harmony.  He  brings  great  experience  and  great  wisdom  to  this 
field,  has  a  very  distinguished  record  as  district  attorney,  and  even 
a  more  distinguished  record  as  State  attorney  general  conducting 
investigations  and  prosecutions  and  doing  some  pioneering  work  as 
the  first  elected  attorney  general  in  Pennsylvania.  So  I  want  to  be 
here  to  present  him  to  this  panel,  albeit  late,  but  insert  it  in  the 
middle  of  the  record,  and  to  participate  in  the  hearing. 

Thank  you. 

Mr.  Zimmerman.  Thank  you.  Senator  Specter. 

Mr.  Chairman,  very  recently  I  had  the  privilege  of  testifying 
before  Senator  Specter  in  connection  with  a  number  of  the  matters 
that  we  are  talking  about  here  this  morning,  and  specifically  the 
Senator's  career  criminal  bill  which  is  important  to  all  of  us  in 
Pennsylvania.  And  at  that  time  I  underscored  the  need  for  many  of 
the  areas  that  we  are  talking  about  here.  Senator  Specter  and  I 
have  worked  together  and  we  in  Pennsylvania,  of  course,  know 
well  that  Senator  Specter  has  made  his  case  as  a  friend  of  law  en- 
forcement and  enjoys  an  enviable  record  as  a  former  prosecutor 
and  a  distinguished  Member  of  the  Senate.  I  thank  you  for  being 
here.  Senator. 

Senator  Laxalt.  1  might  say  that  as  far  as  those  of  us  on  the  sub- 
committee and  the  full  committee  are  concerned,  we  recognize  that 


he  has  the  most  recent  experience,  but  he  is  fast  becoming  the 
guru  in  this  whole  area. 

Senator  Specter.  It  is  worth  a  lot,  Mr.  Chairman.  Thank  you. 

Mr.  Zimmerman.  Senator,  an  area  that  we  strongly  urge  move- 
ment on  is  the  reform  of  Federal  intervention  in  State  proceedings. 

1  suppose  if  I  were  to  characterize  two  areas,  among  others,  that 
cause  a  great  deal  of  concern  on  the  part  of  people  that  talked  with 
me  and  whom  I  have  listened  to  as  I  have  traveled  across  Pennsyl- 
vania and  across  this  Nation  as  chairman  of  our  Subcommittee  on 
Criminal  Justice,  they  are  the  lack  of  finality  of  judgment  and 
delay  in  a  criminal  justice  system.  Two  areas  of  genuine  concern 
that  people  simply  cannot  understand  why  they  cannot  be  changed. 

Well,  I  strongly  urge  that  this  particular  legislation  would  make 
a  significant  change  by  cutting  off  the  time  period  of  attack  in  the 
Federal  courts  where  State  matters  have  been  ventilated,  have 
been  considered  and  have  been  finalized.  There  must  be  some  point 
in  time  where  there  is  finality  of  judgment  if  we  are  to  punish 
criminal  offenders  and  articulate  the  fact  that  what  we  are  doing 
in  jails  and  prisons  today  is  in  fact  punishment  because  there 
cannot  be  an  awareness  on  the  part  of  the  individual  where  he  re- 
lates the  crime  that  he  has  committed  to  the  punishment  unless 
there  is  that  finality  of  judgment.  In  the  system,  perhaps  more  im- 
portantly in  that  person's  mind.  So  I  suggest  that  this  area,  the  bill 
would  limit  the  time  within  which  habeas  corpus  relief  can  be  pur- 
sued and  bar  Federal  intervention  in  cases,  as  I  said,  that  have 
been  fairly  and  fully  adjudicated  in  our  State  courts. 

Senator  Laxalt.  You  think  our  proposal  is  strong  enough? 

Mr.  Zimmerman.  Yes,  I  do,  Mr.  Chairman.  Yes,  I  do.  I  think  it  is 

2  years  after  finality  of  judgment  in  a  State  appellate  court  pro- 
ceeding, I  think  it  is  strong  enough.  I  think  there  has  to  be  that 
opportunity  but  I  think  that  there  has  to  be  a  period  which  is 
closed,  and  I  think  this  does  do  that. 

Senator  Specter.  Mr.  Chairman,  if  I  might  ask  a  question. 

Senator  Laxalt.  All  right. 

Senator  Specter.  Supreme  Court  Justice  Powell  spoke  out  on  a 
related  subject  on  the  application  of  capital  punishment  saying 
that  there  ought  to  be  finality  and  inclusion  of  the  appellate  proc- 

How  would  we  structure  that  if  legislative  change  could  accom- 
plish that,  Mr.  Attorney  General,  in  your  judgment? 

Mr.  Zimmerman.  Well,  we  in  Pennsylvania  have  a  new  capital 
punishment  statute  that  provides  for  automatic  review  of  all  State 
convictions  where  the  death  penalty  is  imposed  in  a  limited 
number  of  situations  by  the  Pennsylvania  Supreme  Court  within  a 
prescribed  time  period.  When  that  is  done,  I  think  that  the  way  to 
address  it  would  be  a  narrowing  of  the  time  period,  limited  to  capi- 
tal offenses  in  order  to  put  finality. 

I  agree  with  the  concern  of  Justice  Powell  about  people  being  on 
death  row  an  inordinate  period  of  time,  and  this  is  happening, 
throughout  the  country. 

Senator  Specter.  How  can  we  deal  with  it?  Can  the  Congress 
constitutionally  legislate  a  time  limit  for  all  Federal  appeals  on 
State  court  cases? 


Mr.  Zimmerman.  Well,  Senator,  I  am  reluctant  to  render  an 
opinion  as  attorney  general  at  this  point  in  time.  There  are  some 
complexities  and  I  would  anticipate  that  certainly  there  are  some 
areas  that  would  require  constitutional  analysis,  but  I  am  not  sure 
of  the  mechanics.  But  I  think  that  conceptually  that  is  the  way  to 
approach  the  problem. 

Senator  Specter.  As  I  read  Justice  Powell's  concern,  he  does  not 
like  the  repeated  appeals.  But  how  can  you  stop  them?  If  somebody 
is  raising  an  allegation  of  constitutional  magnitude  and  goes  before 
a  Federal  district  court  judge,  he  is  right  on  the  same  point  that 
you  are,  and  the  district  court  judge  has  to  consider  it.  Then  there 
is  an  appeal  to  the  court  of  appeals  and  an  application  to  the  U.S. 
Supreme  Court,  and  then  it  starts  all  over  again.  How  can  you  stop 

Mr.  Zimmerman.  I  Ihink  that  the  Congress  can  address  that  so 
long  as  the  law  takes  into  account  a  full  complete  fair  ventilation 
of  these  cases  on  appeal  through  the  State  system  and  at  least  once 
through  the  Federal  system.  I  cannot  see  that  going  beyond  that, 
requiring  an  endless  stream  of  Federal  review  is  necessary. 

Senator  Specter.  Well,  under  Pennsylvania  law,  as  you  say,  the 
State  supreme  court  has  an  obligation  to  review  every  capital  case. 

Mr.  Zimmerman.  That  is  a  new  statute,  Senator.  We  do  not  have 
a  track  record  on  that  but  it  is  going  to  be  interesting  to  see  how 
our  supreme  court  in  Pennsylvania  addresses  that  and  how 
promptly  our  supreme  court 

Senator  Specter.  Well,  you  could  work  it  out  so  that  every  case 
would  be  reviewed  as  in  Pennsylvania  law.  You  could  say  then  it 
would  be  mandatory  review.  Perhaps  the  simplest  way  to  handle  it 
is  to  require  mandatory  review  by  the  Federal  system.  But  some- 
body has  to  make  allegations  fair.  The  courts  cannot  go  through  a 
record  and  speculate  about  what  the  defendant  wants  to  raise.  The 
issue  is  if  the  defense  attorney  raises  allegations  of  error  and  it 
goes  through  the  Federal  system  and  then  comes  back  on  the  brink 
of  execution,  raising  new  points.  How  do  you  stop  that? 

Mr.  Zimmerman.  Well,  I  think  you  stop  it  if  the  Congress  says 
there  is  a  mandatory  review  of  every  conviction  where  the  death 
penalty  is  imposed.  It  must  take  place  within  a  certain  period  of 

Senator  Specter.  And  all  issues  not  raised  are  being  waived? 

Mr.  Zimmerman.  Are  waived. 

Senator  Specter.  The  doctrine  on  the  waiver  of  the  death  penal- 
ty of  a  constitutional  witness  is  very  tough. 

Mr.  Zimmerman.  I  know  it  is,  and  it  is  going  to  be  interesting  to 
see  how  our  court  addresses  it  in  Pennsylvania  in  years  ahead  with 
the  number  of  cases  that  we  have. 

Senator  Laxalt.  I  think  a  lot  of  it  is  going  to  rest  necessarily  in 
the  mind  set  of  the  Federal  judges,  whether  they  can  proceed  with 
these  summarily,  with  dispatch,  if  there  are  no  seconds,  or  if  they 
can  fool  with  the  judges  as  many  of  them  have  been  doing.  That 
has  caused  a  lot  of  the  problems  that  we  have. 

Mr.  Zimmerman.  I  think  that  is  correct,  Mr.  Chairman,  and  I 
think  it  is  true,  as  Senator  Specter  points  out,  we  talk  about  the 
mandatory  review,  if  everyone  knows  that  there  is  going  to  be  a 
review,  the  machinery  gets  into  process  very  quickly,  and  I  think 


that  there  are  fewer  cases  where  you  are  going  to  be  concerned 
about  the  doctrine  of  waiver  in  capital  cases  because  they  are  going 
to  be  brought  together  and  focused  on  earher,  and  perhaps  to  a 

The  forfeiture  provisions  of  the  statute  proposed,  I  think  would 
provide  a  model  for  the  States,  would  allow  transfer  of  the  seized 
assets  to  State  and  local  agencies  which  would  help  considerably  in 
our  antidrug  trafficking  efforts.  I  think  that  the  new  efforts  being 
made  by  the  President's  Drug  Task  Force  across  the  Nation,  and 
prosecution,  the  interdiction  efforts,  especially  the  south  Florida 
task  force's  success,  all  have  focused  the  people's  attention  on  the 
dimensions  of  the  drug  trafficking  problem  in  this  Nation,  and  that 
we  are  confronted  with  big  business.  We  are  confronted  with  people 
who  are  willing  to  accept  the  risk  of  arrest  and  conviction  and  even 
jail  for  the  high  profit  margin  that  is  in  major  drug  trafficking  en- 
terprises today.  And  where  we  can,  as  this  bill  provides  the  oppor- 
tunity to  get  the  assets,  whether  it  is  a  car  or  a  yacht,  whether  it  is 
a  condominium  or  whether  it  is  tracing  proceeds  through  those 
assets,  it  does,  for  the  first  time,  make  a  strong  dent  or  an  impact 
in  the  pocketbook  of  the  drug  traffickers,  the  economics  of  it.  And 
that  is  where  we  should  be  focusing. 

Senator  Laxalt.  Where  are  we  at  the  State  level  in  this  whole 
general  area? 

Mr.  Zimmerman.  Well,  I  think  you  will  find  a  variety  of  patterns. 
I  have  just  proposed  a  strong  forfeiture  provision  in  the  law  in 
Pennsylvania.  I  think  that  right  now  in  Pennsylvania  it  is  very  dif- 
ficult to  seize  an  asset  unless  you  seize  it  when  it  is  directly  in- 
volved or  used  in  the  commission  of  a  crime  in  drug  trafficking, 
and  there  is  no  tracing  provision  for  forfeiture  of  assets  that  are 
the  economic  gain  that  accrues  to  an  individual  involved.  So  I 
think  you  will  find  a  patchwork  or  quiltwork  pattern,  and  that  is 
my  point.  I  think  that  this  legislation  can  be  a  model  for  the  States 
to  follow  in  developing  forfeiture  statutes,  strong  forfeiture  statutes 
throughout  the  Nation. 

Senator  Laxalt.  Let  me  ask  you  as  a  practical  matter,  as  I  asked 
Governor  Robb. 

What  are  the  practical  chances,  assuming  we  go  forward  here,  of 
inducing  the  States  much  as  we  did  in  the  commercial  areas?  Re- 
member, we  went  to  uniform  laws  and  negotiable  instruments. 
What  are  the  realistic  chances  of  inducing  50  rather  independent 
legislatures  to  accept  our  guidance  and  move  along  in  areas  like 

Mr.  Zimmerman.  Well,  I  think  that  obviously  there  will  be  prob- 
lems. You  know  as  well  as  I,  but  I  think  that  there  is  an  area  of 
common  concern  that  perhaps  my  colleague,  Edwin  Miller,  the  dis- 
trict attorney,  may  be  addressing  in  his  testimony  here  this  morn- 
ing, and  that  is  a  concern  about  whether  or  not  these  assets  are 
going  to  go  to  the  Federal,  the  States,  or  to  the  local  governments. 
And  I  think  that  that  concern  could  be  the  nexus  for  developing  a 
Federal  statute.  It  might  be  of  some  interest  to  the  States. 

Senator  Laxalt.  Tell  me  this.  Obviously  just  as  a  political 
matter,  if  you  were  going  to  attempt  to  get  uniform  legislation,  I 
would  think  that  the  thrust  would  have  to  come  from  the  DA's  and 


the  attorneys  general  essentially,  and  certainly  the  Governors,  but 
you  primarily. 

What  do  you  read  within  the  institution,  within  your  association, 
if  you  will,  as  an  attorney  general,  as  to  moving  forward  in  this 

Mr.  Zimmerman.  Oh,  we  feel  very  strongly  as  an  association,  in 
support  of  a  strong  forfeiture  bill  in  the  hope  that  it  would  be  a 
model  for  the  States. 

Senator  Laxalt.  That  second  step  is  being  considered  once  we 
move  that  they  would  politically  support  this  move  forward  in  an 
attempt  to  get  uniform  legislation. 

Mr.  Zimmerman.  Yes,  sir.  The  narrowing  of  the  insanity  defense 
as  incorporated  into  this  package  is  important  to  us.  A  limit  to 
those  unable  to  appreciate  the  nature  or  wrongfulness  of  acts,  and 
I  believe  that  is  the  ALI  test.  We  do  not  have  it  in  Pennsylvania. 
We  still  have  the  M'Naghten  Rule  in  Pennsylvania.  But  it  is  im- 
portant that  this  limitation,  this  narrowing  of  that  insanity  de- 
fense, be  enacted  into  law  and  that  the  burden  of  proof  be  placed 
where  we  feel  it  belongs,  as  attorney  general,  on  the  defense. 

The  National  Association  of  Attorneys  General  has  urged  and 
continues  to  urge  an  additional  verdict,  guilty  but  mentally  ill.  Par- 
enthetically, I  say  that  the  State  of  Pennsylvania,  has  just  enacted 
a  guilty  but  mentally  ill  piece  of  legislation  to  provide  a  fourth 
option  for  jurors.  As  you  know,  it  is  one  of  the  important  focal 
points  of  this  kind  of  legislation  that  a  jury  is  given  that  additional 

I  think  that  it  is  important  on  that  issue  to  make  one  more 
point,  that  you  have  the  opportunity  with  the  fourth  category,  the 
fourth  option,  guilty  but  mentally  ill,  for  the  jury  to  incorporate 
treatment  which  is  necessary  for  mental  illness,  and  we  all  agree. 
But  also  punishment  as  well  at  some  other  time  perhaps. 

Senator  Laxalt.  What  do  we  presently  have  on  the  State  level, 
yours  and  others,  if  you  know,  for  the  civil  commitments  of  Federal 
prisoners  who  have  been  found  not  guilty  by  reason  of  insanity?  Is 
that  machinery  in  place? 

Mr.  Zimmerman.  In  Pennsylvania  it  is. 

Senator  Laxalt.  Is  it  working? 

Mr.  Zimmerman.  Well,  it  is  too  soon  to  tell  against  the  backdrop 
of  the  guilty  but  mentally  ill  type  of  verdict.  But  we  have  had  long- 
standing machinery  operating  in  Pennsylvania  for  these  kinds  of 

Senator  Laxalt.  Would  you  be  able  to  deal  with  the  Hinckley 
case  in  Pennsylvania — with  that  type  of  factual  situation — for  civil 

Mr.  Zimmerman.  No,  we  would  not  have  been.  We  could  not 

Senator  Laxalt.  Other  States? 

Mr.  Zimmerman.  Patchwork,  quiltwork.  That  is  why  the  attor- 
neys general^have  advocated  a  strong  position  on  this  fourth — we 
debated  this  very  heavily  in  the  aftermath  of  the  Hinckley  case, 
which  I  am  sure  you  will  agree  has  generated  a  tremendous  degree 
of  heat  and  not  a  lot  of  light  after  it.  But  I  think  we  are  headed  in 
the  right  direction  and  I  would  be  opposed  to  abolishing  the  insan- 
ity defense.  I  will  not  get  into  all  the  background  of  that. 


My  final  point,  Mr.  Chairman,  is  continued  funding  for  State  and 
local  anticrime  programs,  especially  those  that  focus  on  the  control 
of  violent  crime  and  repeat  offenders,  victim  witness  protection  in 
crime  protection,  whether  or  not  it  is  discretionary  grants  or  block 
grants.  As  I  have  said  before  in  conversations  with  Senator  Specter 
and  in  my  testimony,  it  is  essential  that  Federal  funding  come  fast 
to  the  States  and  to  local  governments.  We  need  it  to  preserve  the 
current  programs  that  have  proved  to  be  worthwhile  and  to  devel- 
op the  incentive  for  new  ones  as  well. 

In  conclusion,  Mr.  Chairman,  I  am  pleased  to  have  this  opportu- 
nity to  testify  on  behalf  of  my  colleagues,  the  National  Association 
of  Attorneys  General,  and  we  stand  ready  to  support  this  subcom- 
mittee's efforts  and  provide  any  additional  information  we  can  in 
order  to  help  get  this  legislative  package  moving.  We  can  talk 
about  a  strong  defense  on  our  shores,  but  if  we  cannot  make  our 
streets  safe,  we  face  a  plethora  of  criticism  out  there  on  the  part  of 
the  people  and  they  are  not  safe.  And  there  is  that  fear  that  per- 
vades our  senior  citizens  across  the  economic  lines  and  across  geo- 
graphical boundaries  of  this  Nation.  And  I  urge  that  you  continue 
your  efforts  as  chairman  of  this  subcommittee  to  make  this  pro- 
posed legislation  a  reality. 

Thank  you. 

Senator  Laxalt.  Thank  you  very  much,  General  Zimmerman. 
You  have  been  very  helpful. 

Let  me  ask  you  a  question.  Within  Pennsylvania,  what  is  the 
degree  of  cooperation  between  the  Feds  and  the  States,  State  law 
enforcement  people?  I  come  from  Nevada  where  it  has  not  always 
been  that  wholesome.  More  often  than  not,  we  have  conflicts  be- 
tween State  officials,  IRS,  and  the  FBI  and  the  rest.  How  does  it  go 
in  Pennsylvania? 

Mr.  Zimmerman.  I  think  it  is  vastly  improved,  Mr.  Chairman.  I 
think  the  traditional  boundary  lines  and  battle  lines  that  have  sep- 
arated and  sometimes  caused  contusions  or  aggravations  in  the 
past  are  being  healed,  and  there  is  a  more  positive  progressive 
movement  underway  in  Pennsylvania.  And  I  think  I  see  it  across 
the  country.  And  I  must  say,  in  large  measure,  Mr.  Chairman,  that 
is  due  to  the  creation  of  the  law  enforcement  coordinating  commis- 
sions that  now  exist  across  the  country  that  include  district  attor- 
neys, attorneys  general,  U.S.  attorneys,  and  various  other  persons 
in  the  enforcement  area  as  well.  They  are  in  place,  they  are  opera- 
tive and  we  are  meeting.  In  fact,  yesterday  I  had  the  opportunity  to 
meet  here  in  Washington  with  my  colleagues,  D.  A.  Miller,  the 
president-elect,  and  other  persons  in  the  law  enforcement  field, 
Federal,  State  and  local,  and  we  are  talking  about  problems  and  we 
are  proposing  solutions  to  some  of  these  disputes  that  exist  out 

Senator  Laxalt.  That  is  really  the  name  of  the  game.  If  these 
various  people  can  talk  with  one  another  and  exchange  their  views 
and  arrive  at  common  solutions,  that  will  overcome  a  lot  of  the 
structural  problems  every  time,  will  it  not? 

Mr.  Zimmerman.  Yes,  sir.  The  competition  has  to  be  together 
against  the  criminal  element  and  not  within  the  law  enforcement 
family  in  this  country. 


Senator  Laxalt.  Let  me  ask  you  a  somewhat  technical  question, 
and  if  you  are  not  prepared  to  answer,  just  say  so. 

But  would  you  consider  a  search  conducted  pursuant  to  a  war- 
rant that  is  later  deemed  to  be  defective  to  be  a  good  faith  effort? 

It  is  something  that  is  going  to  arise,  and  we  have  been  kicking 
it  around  lately  and  we  do  not  quite  know  at  this  point  how  to 
treat  it  or  whether  to  treat  it  at  all. 

Mr.  Zimmerman.  Would  you  repeat  that  question  for  me? 

Senator  Laxalt.  Would  a  search  conducted  pursuant  to  a  war- 
rant later  found  defective,  be  considered  a  good  faith  effort  to  bring 
within  the  rule? 

We  would  think  so,  we  would  think  so  in  the  subcommittee,  but 
you  tell  us 

Mr.  Zimmerman.  Yes,  I  think  it  would  be.  I  think  it  would  be. 

Senator  Laxalt.  We  think  so. 

Mr.  Zimmerman.  I  think  that  is  really  the  essence  of  what  we 
are  saying. 

Senator  Laxalt.  We  are  trying  to  get  away  from  the  technical 
aspects,  the  technical  deficiencies,  and  get  to  the  substance  of  the 
effort,  are  we  not? 

Mr.  Zimmerman.  Yes. 

Senator  Laxalt.  Well,  let  me  ask  you  one  last  question. 

You  have  seen  the  package,  you  know  where  we  are  trying  to  go. 
Do  you  see  any  major  defect  in  our  approach  here? 

Mr.  Zimmerman.  No,  not  in  your  approach.  I  think  that  you  have 
focused  on  the  areas  of  concern,  the  areas  that  need  quick  move- 
ment, and  if  we  can  get  it  moving,  I  think  there  is  going  to  be 
strong  broad-based  support  from  the  attorneys  general,  and  I  am 
sure  the  district  attorneys.  Mr.  Miller  is  going  to  address  that  fact 
here  or  that  part  here  this  morning.  I  cannot  see  why  it  cannot 
move  and  why  it  cannot  be  successful. 

Senator  Laxalt.  Do  you  see  any  undue  infringement  on  the  lib- 
erties of  our  citizens? 

Mr.  Zimmerman.  No;  I  think  the  proposal  is  sensitive  to  the  con- 
stitutional dimensions  and  certainly  it  would  seem  to  me  that  al- 
though there  would  be  challenges,  certainly,  they  can  pass  constitu- 
tional muster. 

Senator  Laxalt.  We  appreciate  that  because  we  have  attempted, 
I  know  Justice  has  and  certainly  we  have  in  the  subcommittee,  to 
be  sensitive  to  those  concerns. 

Mr.  Zimmerman.  We  appreciate  that. 

Senator  Laxalt.  Senator  Specter. 

Senator  Specter.  Thank  you,  Mr.  Chairman.  Just  a  couple  of 
questions,  Mr.  Attorney  General. 

You  and  I  have  discussed  a  proposal  which  I  have  introduced,  S. 
889,  in  March,  which  is  a  matter  looking  to  the  future  where  an 
effort  is  being  made  to  direct  some  very  substantial  Federal  funds 
to  the  fight  on  crime.  The  statistic  frequently  used  is  that  last  year 
there  were  23,000  Americans  who  were  murdered  on  the  streets 
whereas  we  lost  nobody,  overseas,  at  a  time  when  we  are  in  a  de- 
fense budget  of  $240  billion.  We  are  not  quarreling  with  the  neces- 
sity now,  or  debating  whether  for  fiscal  1984  it  is  going  to  be  $270 
or  $280  billion,  and  that  more  ought  to  be  given  to  what  many  of 
us  call  domestic  defense.  The  proposal  embodied  in  S.  889  is  an 


effort  to  allocate  1  percent  of  our  Federal  budget  somewhere  in  the 
neighborhood  of  $8  to  $10  billion  a  year  to  fight  crime  over  the 
course  of  the  next  10  years,  really  a  massive  serious  attack  to  allo- 
cate resources  of  $100  billion  which  many  of  us  believe  to  be  com- 
mensurate with  the  scope  of  the  problem. 

I  think  it  would  be  useful  to  supplement  your  testimony  on  the 
specific  package  which  Senator  Laxalt  has  developed  with  you  to 
get  your  general  comment  on,  that  kind  of  approach,  although  not 
necessarily  the  specific  contours  of  S.  889,  because  that  is  a  subject 
of  substantial  revision  and  modification. 

Mr.  Zimmerman.  My  response.  Senator  Specter,  obviously  would 
reflect  my  personal  views  and  not  the  views  of  the  national  associ- 
ation because  we  have  not  considered  that  proposal  as  of  this  time. 

I  said  in  the  past,  in  my  conversations  with  you,  and  I  will  say 
today  that  I  support  that  concept.  I  think  it  is  extremely  important 
that  that  kind  of  focus,  that  kind  of  dimensional  attitude  be  ad- 
dressed and  articulated  to  the  people  in  the  country  as  we  focus  on 
crime.  Because  we  have  gone  through  a  plethora  of  all  kinds  of  ef- 
forts, but  unless  we  make  that  kind  of  commitment,  that  kind  of 
dimensional  commitment  to  fight  on  domestic  defense,  as  you  have 
characterized  it,  and  when  we  do  that,  I  think  we  make  an  an- 
nouncement to  the  people  of  this  country  that  we  are  really  serious 
about  fighting  against  crime  and  we  are  going  to  attack  it  as  we  do 
other  things  that  are  of  high  priority  in  this  Nation. 

Senator  Specter.  One  specific  subject  and  that  will  conclude  my 
questioning — on  the  issue  of  prison  construction.  This  is  a  subject 
that  has  been  supported  by  many  of  us  here,  the  chairman  of  the 
full  committee  and  the  chairman  of  the  subcommittee.  Senator 
Dole  has  been  an  advocate  for  many  years,  Senator  Heflin  has  and 
so  have  I. 

In  full  committee  yesterday,  I  proposed  an  amendment  at  the  re- 
quest of  Senator  Dole,  on  behalf  of  the  two  of  us,  to  add  $100  mil- 
lion for  prison  construction  in  the  Justice  Assistance  Act,  a  modest 
program  which  we  talked  about  before. 

Mr.  Zimmerman.  Yes. 

Senator  Specter.  And  last  week  I  offered  an  amendment  to  the 
budget  resolution  to  encourage  State  court  judges  to  sentence 
under  habitual  offender  statutes  embodied  in  S.  58.  I  propose  that 
if  State  court  judges  would  impose  life  sentences  or  long-term  sen- 
tences for  habitual  offenders,  the  Federal  Government  should  un- 
dertake the  responsibility  to  construct  those  prisons.  The  Budget 
Committee  is  a  hard  place  to  get  enough  votes.  There  were  17  votes 
in  favor,  and  I  believe  the  sixties  or  seventies  opposed.  It  was  a 
Thursday  afternoon  and  it  is  difficult  to  table  Thursday  afternoon 
and  go  into  Friday.  But  it  was  a  start  and  it  attracted  attention. 
This  whole  process  of  legislative  change  is  a  long-term  process. 

I  would  be  interested  in  your  comments,  Mr.  Attorney  General, 
on  two  things.  First  is  the  desirability  or  the  necessity  of  Federal 
help  in  prisons  and  second,  any  special  incentives  that  you  think 
would  be  provided  by  saying  to  State  court  judges  if  you  sentence 
under  the  habitual  sentence,  you  will  not  have  any  worry  where 
they  are  going  to  be  placed. 

25-694  O   -    84   -    19 


Mr.  Zimmerman.  Let  me  answer  the  last  question  first.  And  I  am 
speaking  on  behalf  of  myself  and  not  the  National  Association  of 
Attorneys  General. 

I  think  that  it  is  irresponsible  for  those  of  us  in  law  enforcement 
in  this  country  to  talk  tough  about  mandatory  sentences,  talk 
tough  about  putting  people  behind  bars,  and  to  convict  them  unless 
we  take  the  responsibility  for  taking  the  initiative  to  provide  the 
essentials  of  carrying  out  the  sentences,  whether  you  are  talking 
about  the  State  or  the  Federal  sentence.  The  kinds  of  sentences  are 
important  to  the  States. 

We  in  Pennsylvania  have  just  finished  debating,  deciding  and  en- 
acting into  law  a  limited  sentencing  program  that  will  escalate  the 
population  in  Pennsylvania  for  the  next  7  years.  I  am  told  that  as 
of  the  end  of  1982  there  are  400,000  persons  behind  bars  in  this 
Nation,  the  highest  that  it  has  been  in  a  long  time.  I  think  that  the 
kind  of  sentences  that  you  are  talking  about.  Senator,  are  neces- 
sary and  acceptable  to  put  this  program  into  reality.  We  have  done 
that  in  Pennsylvania,  I  am  proud  to  say,  that  tie  into  our  manda- 
tory sentencing  program  a  per  capita  expenditure  program  for  ad- 
ditional prisons  to  carry  out  these  sentences.  That  is  the  kind  of 
help  that  the  Federal  Government  would  fashion  and  provide  to 

Senator  Specter.  Thank  you  very  much,  Mr.  Attorney  General. 

Senator  Laxalt.  Just  one  last  philosophical  observation. 

Senator  Specter  and  I  have  discussed  these  matters  and  will  con- 
tinue to  do  so.  And  the  thought  of  earmarking  1  percent  of  our  ef- 
forts here  to  really  get  at  crime  in  this  country  is  appealing  when 
you  are  talking  about  $8  to  $10  billion.  But  the  fact  is  that  we  have 
thrown  substantial  money  to  other  areas  of  domestic  concern  like 
poverty  and  education,  and  I  would  like  to  feel  that  that  has  result- 
ed in  some  dividends. 

If  I  thought  that  the  expenditure  of  $20  billion  would  markedly 
reduce  crime  in  this  country  and  make  our  streets  safer,  I  would  be 
right  in  front  of  the  lines,  but  I  have  a  basic  reservation  that  our 
throwing  money,  even  at  this  very  serious  problem,  is  going  to  do 
the  job.  It  would  seem  to  me  that  much  of  the  problem  rests  in 
legal  loopholes  which  we  as  lawyers  create  as  well  as  the  mind  set 
of  judges  at  both  the  State  and  the  Federal  level.  I  just  wonder 
really  whether  or  not  as  a  practical  matter  this  is  the  way  to  go? 

Mr.  Zimmerman.  Mr.  Chairman,  I  think  part  of  the  answer  to 
your  question  is  in  the  question  itself  as  you  phrased  it. 

We  have  in  the  past  thrown  those  moneys  into  those  kind  of 
problems,  only  to  see  little  if  any  result. 

I  think  that  the  kind  of  dimension  that  you  are  talking  about, 
the  1  percent  in  and  of  itself  articulates  implicit  need  for  a  very 
comprehensive  analysis  and  a  focus  on  certain  limited  areas,  vio- 
lent crime,  organized  crime,  professional  criminal  activities  and,  by 
the  way,  I  personally,  as  Senator  Specter  knows,  define  that  a  bit 
differently  than  organized  crime.  The  professional  criminal,  in  my 
opinion,  burglary  rings  are  all  over  the  place,  people  who  are  will- 
ing to  take  that  risk  get  caught  and  convicted  because  they  know 
the  profit  margin  is  there.  If  we  can  produce  attention  in  those 
areas,  not  just  throwing  it  in,  I  think  we  can  see  positive  results. 
But  the  fact  that  you  announce  that  kind  of  dimension  for  the  Con- 


gress  is  what  is  significant  to  people  in  this  country  because  it  will, 
for  the  first  time,  just  to  pose  one  thing,  domestic  defense  to  na- 
tional defense  and  will  be  very  positive  and  very  positively  re- 

Senator  Specter.  Let  me  followup  with  just  one  more  question, 
Mr.  Chairman.  Is  it  going  to  do  any  good  to  spend  that  money?  The 
program  that  I  envision  focuses  on  the  career  criminal.  There  are 
two  efforts.  One  is  to  prevent  criminals  and  the  other  is  to  separate 
the  career  criminals  that  are  in  existence.  It  focuses  on  rehabilita- 
tion of  first  and  second  offenders.  We  turn  out  functional  illiterates 
without  trades  or  skills,  and  it  is  no  surprise  that  they  come  back 
once  they  become  career  criminals.  It  focuses  in  society  for  long  pe- 
riods of  time,  up  to  life  in  jail.  The  major  problem  in  this  country 
today  dealing  with  the  200,000  career  criminals  is  that  there  is  no 
place  to  put  them.  Jails  have  increased  42,000  last  year  so  they  are 
now  in  excess  of  430,000  people  in  Federal  jails.  And  just  to  con- 
struct the  prison  space  for  200,000  would  cost  between  $10  billion 
and  about  $50  billion.  We  cannot  begin  to  deal  with  this  career  ele- 
ment unless  we  have  space  to  separate  them.  All  of  those  men  and 
women  do  come  into  the  system,  and  we  have  a  chance  to  put  them 

My  question  to  you,  Mr.  Attorney  General,  is  would  we  achieve  a 
beneficial  effect  if  we  focus  on  the  career  criminal  and  try  to 
devote  1  percent  of  our  effort  to  that?  One  of  the  important  things 
that  LEAA  has  done  is  to  identify  career  criminals,  bringing  that 
term  into  the  lexicon.  I  would  be  interested  in  your  observations  on 
Senator  Laxalt's  question  as  it  would  focus  a  real  attack  on  the 
200,000  career  criminals  in  the  country. 

Mr.  Zimmerman.  Senator,  I  think  you  are  absolutely  correct 
when  you  say  that  you  have  placed  in  the  lexicon  of  law  enforce- 
ment the  career  criminal  and  the  program  involving  career  crimi- 
nals funded  by  LEAA's.  One  of  the  few  but  very  few. 

I  think  we  have  to  focus  on  the  career  criminal.  I  do  not  know  if 
I  undeistand  your  question.  You  are  saying  1  percent  would  relate 
totally  to  career  criminals? 

Senator  Specter.  Not  totally  because  there  is  too  much  more. 
But  that  would  be  the  main  focus.  My  main  focus  is  on  that  group, 
preventing  their  becoming  career  criminals,  or  once  they  incarcer- 
ate them  and  throw  away  the  key. 

Mr.  Zimmerman.  And  incorporated  in  that  kind  of  question 
would  be  a  willingness  to  separate  the  juvenile  from  the  adult  of- 
fender. I  think  we  have  developed  in  this  country,  by  the  way,  a  set 
of  career  juvenile  offenders  and  I  think  that  that  would  be  an  im- 
portant focus  as  well.  Whether  you  are  talking  about  career  crimi- 
nals, career  juvenile  offenders,  but  in  concept,  yes.  Senator,  I  think 
that  would  have  to  be  a  high  priority  in  the  1  percent. 

Senator  Laxalt.  Thank  you  very  kindly,  gentlemen. 

While  we  are  discussing  this.  Senator  Specter,  perhaps  you  could 
include  in  the  record,  if  you  have  not  already,  what  part  these 
200,000  career  criminals  play  in  the  total  crime  rate— you  gave  me 
that  number  and  I  thought  it  was  rather  interesting. 

Senator  Specter.  Mr.  Chairman,  these  200,000  career  criniinals 
are  said  by  the  experts  to  commit  as  many  as  300  robberies  or 
burglaries  a  year.  These  are  men  and  women  who  are  in  operation 


every  night  and  they  commit  more  than  70  percent  of  the  robber- 
ies, burglaries,  and  major  crimes  that  are  reported.  Those  are  the 
statistics.  I  think  Attorney  General  Zimmerman  can  corroborate 

Mr.  Zimmerman.  Yes,  I  can,  and  I  would  add  one  other  thing, 
Mr.  Chairman,  if  I  may. 

Consistent  with  what  we  have  been  talking  about  in  the  last  few 
minutes,  and  that  is  the  Federal  program  for  surplus  properties  to 
State  prison  use,  that  is  important  as  well,  the  National  Associ- 
ation of  Attorneys  General  supports  that  concept  to  be  continued, 
while  we,  unfortunately,  debate  and  decide,  these  important  pro- 
posals. As  the  Senator  has  pointed  out,  the  streets  are  filled  every 
night  with  career  criminals  assaulting  and  terrorizing  people  of 
this  Nation,  and  it  is  tragic  today  that  the  constitutional  rights  of 
the  law-abiding  citizens  of  this  Nation  have  been  infringed  to  the 
extent  that  they  feel  and  they  believe,  and  I  go  back  to  my  acquies- 
cence quotient,  that  they  cannot  work  or  even  worship  where  they 
will  without  that  kind  of  fear  pervading.  That  is  why  I  urge  dili- 
gence and  fast  pursuit  in  the  proposals  that  you  have  before  you. 

Senator  Laxalt.  Thank  you  veiy  kindly.  Attorney  General.  You 
have  been  very  helpful.  We  will  continue  to  be  in  touch  with  you, 
you  can  be  assured  of  that. 

Mr.  Zimmerman.  Thank  you  very  much.  Thank  you,  Senator 

[The  prepared  statement  of  Leroy  Zimmerman  follows:] 


Prepared  Statement  of  LeRoy  S.  Ziwerman 

Mr.  Chairman  and  Mambars  of  the  Criminal  Justice  Subcommlcta* 

Ic  Is  with  plaasura  chac  I  appear  before  the  Subcommittee 
on  Criminal  Law  to  present  testimony  on  the  Comprehensive 
Crime  Control  Act  of  1983,  S.829.   I  appear  before  you  on 
behalf  of  the  National  Association  of  Attorneys  General 
to  support  the  Association's  stand  on  specific  aspects  of 
Che  1983  crime  package.   X  would  note  that  X  had  Che 
recent  opporcunlty  to  present  testimony  before  the  Honorable 
Arlen  Specter,  Senator  from  Pennsylvania  and  member  of 
Chls  subcommiccee,  concerning  proposed  career  criminal 
leglslaclon.   At  that  time,  X  expressed  support  for  a 
Justice  AsslsCance  Act,  because  of  the  very  urgent  need 
for  federal  assistance  to  state  and  local  law  enforcement 
agencies  in  the  war  against  crime  which  is  being  waged  in 
the  alleys  and  streets  of  our  communities.   As  a  criminal 
prosecutor  of  years  standing,  I  have  seen  the  toll  the 
rising  crime  rate  has  exacted  from  our  economy,  our 
pursuits  of  happiness,  our  freedom  from  fear,  our  mobility, 
our  traditional  patterns  of  living. 

When  introducing  the  Comprehensive  Crime  Control  Act 
in  the  Congress,  Senator  Thurmond  noted  that  crime, 
"particularly  violenc  crime,  drug  trafficking  and  organized 
crime  --  is  one  of  the  major  concerns  of  the  people  of  the 
United  ScaCes"  and  that  "crime  and  the  fear  it  generates 
are  equal  in  importance  to  the  issues  surrounding  national 
security  and  the  economy."   I  echo  the  Senator's  concern 
but  add  that  what  we  are  confronted  with  today  is  the 
acquiescence  quotient  in  the  formula  of  our  criminal 
justice  system  that  law  enforcement  and  the  citizens  of 
chls  country  must  overcome.   Too  frequently  people 
accept  as  a  fact  of  life  that  there  will  always  exist 


a  certain  percentage  of  crime  in  Che  streets,  in  government, 
in  the  market  place  and,  adjust  their  lives  accordingly. 
This  acquiescence  quotient  occurs  because,  in  my  opinion, 
the  criminal  justice  system  has  not  kept  pace  with  the 
times.   The  law  enforcement  community  has  not  been  as 
innovative  and  creative  as  has  the  criminal  community. 

Innovation  and  creativity  are  apparent  in  the 
legislation  you  are  now  considering.   I  urge  you,  as  the 
chief  law  enforcement  officer  of  the  Commonwealth  of 
Pennsylvania  and  as  a  spokesman  for  the  National  Association 
of  Attorneys  General,  to  move  with  all  deliberate  speed 
to  make  crime  control  a  reality,  not  another  theory. 

Specifically,  the  National  Association  of  Attorneys 
General  supports  federal  bail  reform.   Most  federal,  state 
and  local  bail  decisions  are  based  solely  on  the  likelihood 
that  the  defendant  will  appear  for  court  for  his  next 
scheduled  proceeding.   However,  since  the  rate  of  recidivism 
for  individuals  released  on  bail  is  extremely  high,  consid- 
eration must  be  given  to  the  dangerousness  of  the  defendant 
and  the  risk  to  the  community  should  he  be  released  on 

bail  pending  trial.   Legislation  which  requires  that  judges 
consider  the  danger  that  an  offender  poses  to  society  in 
addition  to  risk  of  flight  factors  in  deciding  the 
appropriateness  of  bail  is  essential  as  a  response  to 
the  rising  numbers  of  crimes  committed  by  persons  released 
on  bail.   Reform  of  bail  procedures  in  the  area  of  narcotics 
abuse  and  control  must  also  be  considered. 

The  exclusionary  rule  has  surely  outlived  its 
effectiveness.   In  a  formal  statement  presented  to  this 
subcommittee  last  week,  the  United  States  Department  of 
Justice  urged  the  exclusionary  rule  not  be  applied  in 
cases  in  which  law  enforcement  officers  who  conduct  a 
search  acted  in  a  reasonable  good  faith  belief  that  their 
actions  were  lawful. 


The  fundamental  and  Legiclmace  purpose  of  che 
•xclualonary  rule,  to  deter  illegal  police  conduct  and 
promote  respect  for  the  rule  of  law  by  preventing  illegally 
obtained  evidence  from  being  used  in  a  criminal  trial, 
has  been  eroded  by  action  of  the  courts  barring  introduction 
of  the  truth,  however  important,  if  there  is  any  investiga- 
tive error,  however  unintended  or  trivial,  where  constitu- 
tional violations  have  occurred.   The  remedy  for  such 
errors  must  be  proportional  to  the  magnitude  of  the 
violation.   Evidence,  we  submit,  should  not  be  excluded 
from  a  criminal  proceeding  if  it  has  been  obtained  by  a 
law  enforcement  officer  acting  in  a  reasonable  good  faith 
belief  that  the  evidence  was  obtained  in  conformity  with 
the  Fourth  Amendment  to  the  Constitution.   This  is 
particularly  true  if  the  evidence  was  obtained  pursuant 
to  and  within  the  scope  of  a  warrant  which  was  issued 
by  a  neutral  and  detached  magistrate. 

The  Comprehensive  Crime  Control  Act  takes  a  giant 
step  toward  "reform  of  federal  intervention  in  state 
proceedings"  and  will  return  a  measure  of  certainty  to 
the  criminal  justice  system.   Public  confidence  in  the 
efficiency  of  the  system  is  sorely  tested  by  the  lack 
of  finality  in  criminal  cases,  by  the  never  ending 
availability  of  open  courts  within  which  to  pursue 
repetitious  and  frivolous  claims  for  relief  from  punishment. 
No  place  is  this  lack  of  finality  so  apparent  than  in  the 
broad  availability  of-.the  writ  of  habeas  corpus.   The 
expansion  of  the  writ  and  the  way  in  which  federal  courts 
have  accepted  the  invitation  to  use  the  writ  to  review 
•cate  court  Judgments  have  resulted  in  misuse  suid  abuse 
of  the  writ. 

In  a  statement  on  April  18,  1983  concerning  the 
.-denial  of  certiorari  in  the  case  of  Spalding  v.  Aiken, 
...U.S.  ,  No.  82-663,  Chief  Justice  Burger  cogently 


recognized  the  need  for  habeas  corpus  reform  when  he 

The  time  has  come  to  consider 
limitations  on  the  availability 
of  the  writ  of  habeas  corpus 
in  federal  courts,  especially  for 
prisoners  pressing  state  claims 
which  were  fully  ventilated  in 
state  courts. 


Claims  presented  by  way  of  habeas 
corpus  petitions  many  years  after 
conviction  impose  especially 
heavy  burdens  on  the  prison  system, 
on  society  and  on  the  administra- 
tion of  justice.   Our  willingness 
to  entertain  these  late  claims 
tells  prisoners  that  they  need 
never  reconcile  themselves  to 
what  has  happened:   They  need 
never  "make  peace"  with  society, 
learn  a  new  way  of  life,  or 
attempt  to  build  a  realistic 
future.   Our  society's  constant 
willingness  to  reopen  cases 
long  closed  tells  the  public  that  we 
have  no  confidence  that  the  laws 
are  administered  justly. 

We  urge  broad  reform  of  federal  habeas  corpus  procedures 
and  support  the  legislation  which  establishes  a  restricted 
time  period  within  which  habeas  relief  can  be  pursued,  and 
bars  federal  intervention  in  state  court  judgments  when 
full  and  fair  adjudication  was  had. 

Finally,  I  speak  in  support  of  Title  IV  -  Forfeiture; 
Title  V  -  Insanity  Defense  and  Title  VIII  -  Justice 

Criminal  forfeiture  is  an  effective  means  of 
preventing  drug  traffickers  from  profiting  from  their 
Illegal  activities  by  ensuring  that  illegally  generated 
property  will  not  remain  in  the  hands  of  convicted 
criminals.   Title  IV  would  facilitate  the  ability  of  federal 
prosecutors  to  recover  money  from  drug  traffickers  and 
would  serve  as  a  useful  model  for  state  legislatures 
contemplating  similar  legislation.   Importantly  for  the 
states,  the  provisions  in  Title  IV,  amending  the  Tariff 


Act  of  1903  which  would  authorize  the  transfer  of 
forfeited  property  to  any  state  or  local  law  enforcement 
agency  which  participated  directly  in  any  acts  which 
led  to  the  seizure  or  forfeiture  of  property,  would  serve 
to  enhance  significantly  both  state  and  local  drug  law 

The  National  Association  of  Attorneys  General  supports 
the  narrowing  of  the  insanity  defense  as  promulgated  in 
Title  V  by  limiting  the  defense  to  those  who  are  unable 
to  appreciate  the  nature  or  wrongfulness  of  their  act; 
placing  the  burden  on  the  defendant  to  establish  insanity 
by  clear  and  convincing  evidence;  preventing  expert 
testimony  on  the  ultimate  issue  of  the  defendant's  state 
of  mind  and  establishing  procedures  for  the  civil  commitment 
of  persons  found  not  guilty  by  reason  of  insanity. 

The  Association  would  urge,  however,  the  establish- 
ment of  an  additional  verdict  of  guilty  but  mentally  ill 
with  the  burden  resting  on  the  defendant  to  prove  the 
mental  illness. 

The  National  Association  of  Attorneys  General  is 
on  record  as  supporting  continued  federal  funding  for 
successful  state  and  local  anti-crime  programs.   We  take 
no  position,  however,  regarding  the  internal  organization 
within  the  Department  of  Justice. 

The  need  for  this  funding  on  the  state  and  local 
level  cannot  be  seriously  questioned.   The  direct  burden 
for  the  enforcement  of  criminal  laws  falls  squarely  on 
state  and  local  governments.   The  continued  high  incidence 
of  crime  makes  this  burden  intolerable.   State  and  local 
law  enforcement  efforts  are  threatened  with  suffocation 
unless  additional  resources  in  the  form  of  federal 
financial  assistance  become  available.   Such  resources 
should  focus  on  high  priority  programs  for  control  of 
violent  and  repeat  offenders,  victim/witness  protection 
and  crime  prevention. 

May  I  conclude  by  encouraging  swift  congressional 
action  on  this  vital  legislation.   The  criminals  are  not 
sitting  back  waiting  to  see  what  plans  are  being  considered 
to  curtail  their  activities.   No,  they  are  on  the  streets 
every  day  and  night  in  every  city,  town  and  village,  plying 
their  nefarious  trades.   This  crime  package  is  innovative. 
It  can  make  a  real  difference  in  the  fight  against  crime. 
The  package  contains  not  mere  statutory  changes  but  provides 
enforcement  tools,  tools  which  will  mean  something  to  the 
cop  on  the  comer  and  the  citizens  he  is  there  to  protect. 


Senator  Laxalt.  Mr.  Miller,  welcome.  We  appreciate  your  being 
here.  We  are  sorry  to  have  taken  so  long  but  we  lawyers  tend  to 
absorb  a  lot  of  unnecessary  time. 

Our  next  witness  for  the  record  is  Edwin  L.  Miller,  Jr. 


Mr.  Miller.  Thank  you,  Mr.  Chairman. 

Senator  Laxalt.  Are  you  the  new  president  or  president-elect? 

Mr.  Miller.  I  am  the  president-elect  of  the  National  District  At- 
torneys Association.  I  will  become  president  at  our  August  confer- 

Senator  Laxalt.  Congratulations  and  good  luck. 

Mr.  Miller.  Thank  you  very  much. 

I  had  intended  to  read  my  introduction  and  incorporate  into  the 
record  some  of  the  provisions  and  then  read  my  position  on  the  ex- 
clusionary rule  and  then  NDAA's  position  on  the  expansion  of  Fed- 
eral jurisdiction  into  violent  crime.  But  in  view  of  the  questions 
that  you  have  asked,  perhaps  you  would  prefer  that  I  incorporate 
my  entire  statement  into  the  record,  in  order  to  give  you  more  of 
an  opportunity  to  ask  questions  that  are  of  particular  concern  to 

Senator  Laxalt.  We  would  be  pleased  to  do  that. 

Mr.  Miller.  All  right. 

Then,  with  that  in  mind,  let  us  incorporate  into  the  record  my 
entire  testimony  which  covers  the  supportive  testimony  with  re- 
spect to  proposed  reform  of  the  exclusionary  rule,  bail,  the  insanity 
defense.  Federal  intervention  in  State  proceedings,  sentencing,  and 

As  you  may  know,  our  position  with  respect  to  expansion  of  Fed- 
eral jurisdiction  into  violent  crime  is  reflected  in  the  murder  for 
hire  provision  and  is  opposed  by  the  National  District  Attorneys 
Association  for  the  reasons  that  I  state  in  my  testimony. 

Senator  Specter  touched  a  little  bit  on  the  career  criminal  area, 
and  I  am  very  close  to  that.  In  California  we  have  through  State 
funding  career  criminal  programs  in  all  large  district  attorneys'  of- 
fices. In  my  office  we  have  six  attorneys  who  vertically  prosecute 
career  criminals  for  robbery  and  for  burglary,  and  they  have  been 
highly  successful.  They  do  not  plea  bargain,  they  take  advantage  of 
the  new  determinant  sentencing  law  that  exists  in  California,  and 
sentences  are  maximum  for  those  individuals. 

Senator  Laxalt.  For  the  purpose  of  the  record,  would  you  state 
what  a  career  criminal  is  under  the  California  law? 

Mr.  Miller.  Well,  a  career  criminal,  in  short,  is  a  person  who  in 
effect  devotes  his  entire  career  to  the  commission  of  crimes  profes- 
sionally. In  our  instance,  robbery  and  burglary  in  California. 

Senator  Laxalt.  Is  there,  as  there  was  in  the  old  days  when  I 
was  a  prosecutor,  a  point  when  three  felonies  make  you  a  career 

Mr.  Miller.  Yes.  We  use  the  criteria,  a  point  system  which  is 
based  upon  the  person's  past  record,  the  nature  of  the  offense  that 
he  committed  and  the  particular  incident,  and  a  number  of  other 


factors  that  go  into  a  profile  of  that  type  of  individual.  That  is  used 
to  select  certain  individuals  who  are  coming  into  the  system.  By 
following  that  criteria,  those  cases  are  shifted  to  the  career  crimi- 
nal program,  and  instead  of  handling  the  matters  horizontally, 
which  means  from  one  court  jurisdiction  to  another,  superior  court, 
pretrial  appellate,  pretrial  hearings  and  so  on,  where  different  at- 
torneys touch  upon  the  same  case,  in  the  area  of  career  criminal, 
there  is  absolute  total  concentration  on  each  case  carried  all  the 
way  through  by  that  individual  prosecutor. 

Senator  Laxalt.  How  is  that  handled,  on  a  countywide  basis? 

Mr.  Miller.  Countj^wide  basis.  In  California  we  have  12  separate 
district  attorneys'  offices  of  larger  size  who  have  those  kinds  of 
units.  We  were  the  first  career  criminal  program  on  the  west  coast. 
We  started  under  LEAA  back  in  1975,  our  program  was  used  as  a 
model,  and  LEAA  was  gracious  enough  to  give  our  office  an  award 
as  having  the  leading  career  criminal  program  in  the  country. 

Senator  Specter.  Mr.  Miller,  would  you  agree— if  I  may,  Mr. 
Chairman— with  the  ball  park  figure  of  about  200,000  career  crimi- 
nals in  the  country? 

Mr.  Miller.  You  know,  I  cannot  give  you  the  statistics,  but  lis- 
tening to  your  approach  to  this  thing,  I  would  like  to  give  you  some 
ideas  at  least. 

Senator  Specter.  I  would  be  interested  to  know  what  your  sense 
is.  It  is  a  hard  fiqure  to  come  up  with. 

When  I  was  district  attorney  in  Philadelphia,  we  put  the  figure 
of  2,500  with  some  substantial  experience.  When  Senator  Laxalt 
and  I  were  discussing  the  matter  many  weeks  ago,  and  he  asked 
me  for  a  national  focus,  I  came  up  with  a  figure  of  200,000.  I  dis- 
cussed it  with  people,  and  it  seems  to  be  a  reasonable  figure.  If  you 
project  the  number  of  crimes  that  career  criminals  commit,  there 
are  lots  of  studies  on  this,  they  go  into  thousands  a  year. 

Mr.  Miller.  We  have  studies  by  the  Rand  Corp.,  as  you  well 
know,  indicating  all  sorts  of  statistics,  both  in  numbers,  both  in  at- 
titudes by  the  prisoners  after  they  are  incarcerated,  what  the  pris- 
oner philosophy  is  with  respect  to  rehabilitation.  There  are  studies 
that  you  gentlemen  should  really  read  that  have  to  do  with  the 
whole  subject  of  career  criminals. 

Senator  Specter.  Unfortunately,  I  have  read  them. 

Mr.  Miller.  Have  you? 

Senator  Specter.  Yes.  It  is  disquieting  nighttime  reading. 

Senator  Laxalt.  May  I  ask  a  question  while  we  are  on  this 
before  it  slips  my  mind? 

You  have  been  into  this  in  San  Diego  County  since  1975? 

Mr.  Miller.  1975,  yes. 

Senator  Laxalt.  What  has  that  done  to  your  overall  crime  rate? 

Mr.  Miller.  The  crime  rate,  and  that  is  the  point  I  want  to 
make,  in  California — in  California  the  crime  rate  is  down  consider- 
ably, is  down  substantially. 

Senator  Laxalt.  In  relation  to  other  States? 

Mr.  Miller.  In  relation  to  other  States. 

Senator  Laxalt.  And  your  county,  in  relation  to  other  counties? 

Mr.  Miller.  No,  not  necessarily.  But  it  is  down  comparably  and 
probably  below  most  counties,  yes. 


Bear  in  mind  that  the  other  counties  now  have  career  criminal 
programs  too.  But  the  thing  that  is  happening,  which  is  exceeding- 
ly important,  is  that  in  1978,  the  State  went  from  indeterminate 
sentencing  to  determinate  sentencing,  and  since  1978,  and  thereaf- 
ter, when  sentences  and  the  terms  for  punishment  in  California 
were  gradually  raised  in  the  area  of  violent  crime,  more  and  more 
people  have  been  sent  to  prison. 

If  my  figures  are  correct,  and  I  think  they  are,  there  were  some 
22,000  to  23,000  individuals  in  State  prison  in  1978,  and  there  are 
close  to  35,000  in  prison  now. 

Senator  Laxalt.  How  many  of  those  are  career? 

Mr.  Miller.  Well,  there  again  I  cannot  give  you  the  figure  but  it 
is  a  considerable  number.  I  mean  we  are  concentrating  on  recidi- 
vists. What  I  am  saying,  by  putting  the  recidivist  in  prison,  to  a 
greater  extent  it  has  had,  in  my  judgment,  an  effect  on  the  crime 
rate.  It  is  a  tough  way  to  go  because  now  the  State  is  feeling  the 
pinch  and  we  are  having  difficulty  finding  space  for  the  people  who 
are  going  to  prison. 

Senator  Specter.  California  has  authorized,  through  referendum, 
bonds  for  prison  construction? 

Mr.  Miller.  They  did  authorize  it  by  vote. 

Senator  Specter.  Which  is  really  surprising  for  a  proposition  13 

Mr.  Miller.  Well,  what  I  am  saying  is  the  public — the  public  was 
willing  to  pay  the  price  of  $500  million  to  build  some  new  prisons 
in  order  to  take  care  of  the  people  that  you  are  talking  about. 

Senator  Laxalt.  Was  this  in  the  1982  authorization,  the  1982 

Mr.  Miller.  The  1982  election. 

Senator  Laxalt.  And  they  authorized  $500  million? 

Mr.  Miller.  $500  million. 

Senator  Specter.  Is  that  one  referendum  or  were  there  two? 

Mr.  Miller.  Two.  One  had  to  do  with  jails 

Senator  Specter.  That  impressed  me,  Mr.  Chairman,  because  I 
found  that  California  authorized  the  funding  in  a  popular  election, 
considering  their  very,  very  heavy  parsimonious  attitude,  the  origi- 
nator of  proposition  13. 

Senator  Laxalt.  Well,  you  have  obviously  made  your  case. 

Mr.  Miller.  Yes.  But  here  is  another  problem  that  has  to  be  con- 

Under  the  determinate  sentencing  law,  people  sent  to  State 
prison  received  a  third  off  for  good  time.  The  pressures  of  the 
prison  population  are  such  that  the  legislature  made  a  modification 
this  last  year,  even  with  the  increase  in  the  sentences,  that  under 
certain  conditions,  certain  conditions  in  which  the  prisoner  per- 
formed certain  functions  and  does  work  in  education,  whatnot,  that 
they  would  have  the  good  time  reduced  from  one-third  to  one-half. 

You  know,  there  are  pressures  that  take  place  in  this  area  that 
have  an  effect  upon  the  actual  deterrent. 

Senator  Laxalt.  Are  those  mainly  economic  in  character? 

Mr.  Miller.  Well,  work  programs  and  restitution  efforts,  things 
of  that  sort,  but  my  feeling  is  that  that  is  a  good  approach,  and  I 
am  hopeful  that  it  is  going  to  have  a  lasting  effect. 


Senator  Laxalt.  You  mean  the  career  criminal  approach  provid- 
ing space  for  their  detention? 

Mr.  Miller.  Determinate  sentencing  and  so  on,  yes. 

Senator  Specter.  I  think  it  would  be  useful,  Mr.  Miller,  to  the 
extent  that  you  can,  to  give  us  judgments  on  quantification,  that  is 
how  many  career  criminals  there  are,  how  many  offenses  they 

Mr.  Miller.  Sure.  I  would  be  happy  to. 

Senator  Specter.  My  own  judgment,  after  having  been  in  the 
field  for  a  long  time,  is  that  that  200,000  is  a  realistic  judgmental 
figure;  that  is  you  project  500  crimes  a  year,  it  is  on  the  conserv- 
ative side,  robberies  and  burglaries  for  career  criminals — I  see  nod- 
ding in  the  affirmative.  If  you  multiply  500  by  200,000,  you  come  to 
100  million  felonies.  And  when  Senator  Laxalt  and  I  discussed  it, 
we  tried  to  put  it  in  specific  enough  terms  so  that  if  you  are  talking 
to  other  Senators  or  Congressmen,  that  it  makes  sense.  And  the 
projection  that  I  come  back  to  is  the  one  which  was  made  by  the 
National  Commission  on  Criminal  Justice  Standards  and  Goals  10 
years  ago  in  1973,  when  they  had  a  projection  that  they  believed-I 
served  on  that  Commission — that  we  believed  that  violent  crime 
could  be  reduced  by  50  percent  if  you  really  did  a  job,  and  there 
has  been  a  lot  of  development  since  on  the  criminal  development.  I 
would  be  interested  in  your  thoughts. 

Mr.  Miller.  I  would  certainly  be  delighted  to  put  together  all  the 
information.  I  have  reams  of  information  on  this  entire  subject, 
and  I  will  promise  you  that  you  will  get  a  package  from  me  that 
covers,  I  think,  every  relevant  aspect  of  the  career  criminal  pro- 
gram. I  would  be  happy  to  do  so. 

Senator  Specter.  Because  to  the  extent  that  we  can  document  its 
success,  we  have  a  chance  of  getting  people  onboard  to  make  it 

Mr.  Miller.  Certainly.  But  we  have  statewide  reports  that  are 
issued  periodically  and  I  will  forward  those  to  you,  too,  which  show 
the  performance  of  the  various  offices  in  the  area. 

Senator  Laxalt.  Are  there  any  other  States  which  could  be  used 
as  pilots? 

Mr.  Miller.  Well,  I  am  sure  that  there  are.  I  do  not  want  to 

Senator  Laxalt.  We  will  get  into  that. 

Mr.  Miller.  But  one  of  the  reasons  that  I  mention  this  is  because 
in  your  crime  package  your  sentencing  is  going  to  determinate  sen- 
tencing, and  I  think  it  is  wise.  I  think  that  is  the  kind  of  Federal 
proposal  that  is  going  to  be  followed  by  other  States  just  as  the  bail 
reform  proposal  is  a  model,  and  for  those  States  that  are  unable  to 
make  changes  in  their  own  law  that  have  to  do  with  the  dangerous- 
ness  of  an  individual  to  others  and  to  the  community,  gradually 
the  States  will  take  guidance  from  the  Federal  Government.  So 
what  you  have  here  is  a  crime  package  that  I  think  is  superlative, 
in  general  it  is  superlative,  and  I  think  it  is  something  that  should 
be  kept  as  a  package.  And  I  think  once  it  is  enacted  into  law,  it 
will  have  a  tremendous  effect  on  crime  in  this  country.  I  really  be- 
lieve that. 

Senator  Specter.  I  want  to  express  my  regrets.  I  have  to  go  but  I 
will  study  the  balance  of  your  testimony  and  look  forward  to  the 
materials  from  you. 


Mr.  Miller.  Thank  you.  Thank  you. 

Senator  Laxalt,  there  was  one  item  that  is  not  included  in  my 
testimony  that  I  would  like  to  bring  to  your  attention. 

The  National  District  Attorneys  Association  is  very  concerned 
with  the  current  excess  distribution  of  legally  manufactured  drugs 
which  we  believe  are  being  used  in  great  quantities  for  illegal  use. 
The  drugs  with  which  we  are  particularly  concerned  are  Metham- 
phetamine,  that  is  Desoxyn;  Phenmetrazine,  which  are  called  Pre- 
ludins;  Amobarbital,  known  as  downers;  Dialudid  and  Talvin  which 
are  flowing  in  from  foreign  borders. 

On  May  1,  1983,  the  board  of  directors  of  the  National  District 
Attorneys  Association  adopted  a  resolution  expressing  its  position 
on  this  matter,  copies  of  which  will  be  sent  to  each  Member  of  Con- 

I  would  like  to  submit  that  resolution  to  you  at  this  time.  We  ask 
that  in  your  drug  offenses,  particularly  in  that  section,  that  you 
make  certain  that  the  restrictions  on  production  quotas  of  these 
listed  drugs  are  tightened  and  not  relaxed.  And  I  have  a  copy  of 
that  resolution. 

Senator  Laxalt.  It  will  be  ordered  filed  and  we  will  certainly 
give  your  request  every  serious  consideration,  Mr.  Miller. 

I  have  a  time  deadline,  too,  and  you  probably  do  as  well.  May  I 
ask  you  one  question  in  connection  with  good  time? 

You  indicated,  I  think,  if  I  recall  correctly,  that  you  originally 
went  to  25  percent  good  time  credit  and  then  went  to  a  50-percent 

Mr.  Miller.  A  third.  It  was  one-third  good  time,  and  under  cer- 
tain conditions  it  was  recently  altered,  or  at  least  the  opportunity 
to  take  advantage  of  one-half  good  time  was. 

Senator  Laxalt.  We  are  at  a  10-percent  level,  as  you  know,  in 
this  bill.  Are  we  unrealistic? 

Mr.  Miller.  Now,  your  bill,  you  mean  as  far  as  good  time? 

Senator  Laxalt.  Ten  percent  credit  good  time,  yes. 

Mr.  Miller.  Well,  as  I  understand  it,  under  current  Federal  law. 
Federal  prisoners  are  eligible  for  parole  after  a  third,  so,  I  would 
hope  that  when  you  go  to  determinate  sentencing  that  you  put  it 
up  around  two-thirds.  I  think  that  is  where  it  belongs. 

There  was  one  other  area  that  I  wanted  to  bring  to  your  atten- 
tion of  a  technical  nature  that  has  to  do  with  some  provisions  that 
you  have  under  the  insanity  defense.  And  if  you  will  take  a  look  at 
that,  my  recommended  changes  there,  I  think  it  would  be  benefi- 
cial to  you  because  I  see  over  the  horizon  some  problems  that  you 
are  going  to  face,  at  least  based  on  our  California  experience. 

Senator  Laxalt.  Do  you  have  those  as  suggestions  in  writing? 

Mr.  Miller.  Yes,  I  have  them  in  writing. 

Senator  Laxalt.  Are  they  contained  in  your  statement? 

Mr.  Miller.  They  are  contained  in  my  statement.  There  are 
three  separate  changes  recommended  of  a  technical  nature. 

Senator  Laxalt.  All  right.  We  will  take  a  very  close  look  at 

Mr.  Miller,  do  you  have  anything  else  to  offer  to  the  committee? 

Mr.  Miller.  No.  The  only  final  statement  that  I  can  make,  and  it 
is  covered  in  my  testimony  on  violent  crime,  I  think  that  that  is 
one  area  that  the  National  District  Attorneys  Association  opposes. 


We  believe  that  the  prosecution  of  violent  crimes  should  remain 
with  the  local  prosecutor.  I  have  had  the  opportunity  to  serve  as 
both  the  U.S.  attorney  and  as  a  district  attorney,  and  I  can  tell  you 
that  a  lot  of  problems  are  encountered  in  that  delicate  relationship 
between  the  Federal  prosecutor  and  a  local  DA.  We  really  do  not 
need  that  kind  of  intrusion  into  local  prosecutions. 

Senator  Laxalt.  We  are  sensitive  to  that.  Certainly  I  speak  not 
only  for  myself  but  for  the  other  members  of  the  subcommittee. 
The  last  thing  we  want  to  do  in  this  package  is  to  intrude  unneces- 
sarily into  the  State  and  local  realm.  We  just  do  not  want  to  do 

Mr.  Miller.  It  just  causes  all  sorts  of  problems. 

Senator  Laxalt.  Well,  we  thank  you  very  much  and  we  look  for- 
ward to  working  with  you.  We  are  just  getting  started  on  this 
track.  It  is  going  to  be  a  long  while. 

Mr.  Miller.  I  just  want  you  to  know  that  the  National  District 
Attorneys  Association,  with  the  exception  of  that  area,  murder  for 
hire  and  violent  crime,  is  prepared  to  support  you  in  every  possible 
way  that  we  can. 

Senator  Laxalt.  That  is  very  reassuring,  to  say  the  least,  be- 
cause as  I  indicated  initially  here,  you  are  out  there  in  the  trench- 
es dealing  with  this  problem. 

Mr.  Miller.  Well,  we  think  the  crime  package  is  the  best  thing 
that  has  come  along  in  a  long,  long  time. 

Senator  Laxalt.  Thank  you. 

We  do,  too,  in  all  objectivity.  Thank  you  very  kindly. 

[The  prepared  statement  of  Mr.  Miller  and  resolution  follow:] 


Prepared  Statement  of  Edwin  L.  Miller^  Jr. 

I  am  honored  to  have  this  opportunity  to  discuss  with  you  an 
enormously  complex  and  important  piece  of  proposed  legislation, 
H.R.  2151,  known  as  the  "Comprehensive  Crime  Control  Act  of  1983." 
As  a  former  United  States  Attorney,  the  first  person  to  be 
appointed  to  that  position  in  the  Southern  District  of  Cali- 
fornia, and  as  the  District  Attorney  for  San  Diego  County,  a 
position  to  which  I  was  first  elected  in  1970,  I  believe  I  have 
a  thorough  understanding  of  both  our  federal  and  state  systems 
of  criminal  justice. 

Although  I  must  confess  my  native  California  marches  to  the 
beat  of  its  often  peculiar  drummer,  many  of  our  states  follow 
the  lead  of  the  federal  government  in  the  implementation  and 
administration  of  the  criminal  law.  Thus,  any  action  the  Congress 
takes  with  respect  to  the  administration  of  criminal  justice  at 
the  national  level  has  a  tremendous  impact  upon  state  and  local 
prosecutions  and  the  way  our  state  courts  do  business.  In  addi- 
tion, of  course,  how  well  or  poorly  the  federal  system  deals 
with  crime  has  a  residual  effect  on  us  at  the  local  level,  for 
not  only  do  federal  crooks  also  practice  local  crime,  but  we  are 
the  communities  from  which  they  spring. 

I  an.  addressing  you  today  in  my  capacity  as  President-elect 
of  the  National  District  Attorneys  Association,  the  representa- 
tive organ  iza*.  i  or,  of  prosecutors  throughout  the  country.  It  is 
the  position  of  our  association  that  H.R.  2151  is  —  with  one 
exception  --  a  particularly  valuable  piece  of  proposed  legisla- 
tion and  one  which  our  association  earnestly  supports.  We  believe 
It  will  restore  some  much-needed  balance  in  our  criminal  justice 
system  and  that  it  will  result  in  a  greatly  heightened  responsive- 
ness of  that  system. 

Our  system  of  law  attempts  to  strike  a  balance  between 
competing  rignts.  We  weigh  society's  right  to  be  free  from  the 
fear  and  the  tyranny  of  crime  against  the  individual's  right  to 
be  free  from  unwarranted  state  interference,  and  attempt  to 
strike  a  balance.  We  define  the  legitimate  role  of  the  police. 


We  set  forth  those  instances  in  which  a  magistrate's  warrant  is 
required  for  searches  or  arrests.  We  provide  regular  legal  mechan- 
isms for  the  full  and  fair  adjudication  of  disputes. 

In  our  system,  we  also  attempt  to  balance  the  interest  of 
the  federal  gc-.frnment  against  that  of  state  and  local  govern- 
ment. We  provide  feOtral  enforcement  power,  federal  sanctions, 
in  those  ir.  y.t  onces  in  which  individual  conduct  is  violative  of 
some  federal  standard  or  right.  In  other  words,  federal  law 
enforcfmcnt  is  limited  to  those  areas  in  which  the  conduct 
coaplainod  of  has  a  federal  nexus.  Prosecution  of  other  criminal 
conducr  is  reserved  for  the  states. 

This  proposed  legislation  attempts  to  redefine  the  balance 
in  both  these  areas.   First,   it   alters  the  balance  between  an 

ir.Gividual ' s  rights  against  the  government  and  the  government's 
rights  to  protect  society  from  crime.  In  that  area,  we  in  the 
prosecutorial  conrmuniry  believe  that  this  legislation  would 
actually  restore  balance  to  our  criminal  justice  system,  balance 
which  until  now  has  been  tipping  ever  farther  in  favor  of  the 
accused  and  to  the  detriment  of  the  innocent  citizen  seeking 

Second,  the  bill  attempts  to  alter  the  balance  between  state 
and  federal  enforcement  and  prosecution,  granting  to  the  federal 
government  expanded  ability  to  take  over  some  criminal  matters 
which  are  wholly  inappropriate  for  the  federal  government,  and 
to  do  so  whenever  some  tenuous  federal  relationship  can  be 
alleged.  It  has  the  potential  to  deliver  unto  the  federal  govern- 
ment, then,  the  power  to  selectively  take  on  certain  cases 
deemed  important  or  newsworthy  enough  to  merit  federal  attention 
while  leaving  the  state  prosecutor  with  federal  cast-offs. 

It  is  not  surprising  that  we  who  are  state  prosecutors  are 
wary  of  such  a  proposal.  But  for  a  number  of  other  reasons  as 
well,  we  earnestly  oppose  the  federal  expansion  of  jurisdiction 
••  extraordinarily  unwise. 

Mith  the  exception,  then,  of  those  provisions  calling  for  an 
•  sp*r>«iao  of  the  role  of  the  federal  government,  the  National 

25-694  0-84-20 


Districi  Attorneys  Association  supports  the  Comprehensive  Crime 
Cont.roi    Act  of  19  83. 

Indeed,  xe  do  more  than  support  it.  As  NDAA ' s  representative, 
I  c-.'.gt'  passage  of  those  portions  of  this  bill  which  would 
sti-enq?:hen  the  government's  position  in  the  setting  of  bail  and 
would  t?tus  offer  our  communities  a  greater  measure  of  protec- 
tion; would  subst am ial ly  raodify  the  defense  of  insanity  so  as 
to  properly  place  the  burdtn  upon  tht-  person  asserting  such 
defense;  wouJd  ando  much  of  thi-  damage  done  by  the  courts  in  t he 
application  cf  the  Exclusionary  Rule;  would  reform  sentencing 
procedure  an  3  the  administration  of  our  laws  concerning  illicit 
drugs  and  narcotics. 

I  now  would  like  to  discuss  briefly  a  few  of  the  major  provi- 
sions of  this  pending  legislation,  indicating  why  NDAA  offers 
such  strong  support. 

GOOD  Fa:TH  exception  to  the  EXCLUSIONAPY  RL!LE 

Perhaps  the  most  highly  publicized  and  widely  supported 
section  of  the  bill  is  the  Exclusionary  Rule  Limitation  Act.  The 
National  District  Attorneys  Association  joins  the  President  and 
an  impressive  list  of  criminal  justice  scholars,  legislators, 
judges  and  citizens  across  the  nation  in  tendering  the  strongest 
possible  support  for  this  Act. 

As  you  know,  our  newspapers  are  filled  on  a  daily  basis  with 
s:ories  of  how  one  criminal  defendant  or  other  escaped  conviction 
due  to  a  "technicality."  Most  often,  that  "technicality"  is  the 
Exclusionary  Rule. 

In  general,  our  citizens  don't  understand  the  Exclusionary 
Rule.  Most  don't  even  know  such  a  thing  exists.  They  do  know, 
however,  that  in  too  many  cases  the  murder  weapon  or  the  seized 
narcotics  or  the  confession  is  kept  from  the  jury  and  justice  is 
thus  thwarted.  They  know  it,  and  they  resent  it.  They  resent  it 
-because  they  expect,  thty  demand,  a  criminal  justice  system 
which  'set'ks  out  the  truth  and  punishes  -known  Jawbreakers,  rather 


thar.  CI  tystem  in  which  truth  bfcomc-s  but  a  rtst  stop  on  the 
headJong  i ac-  Toward  procedural  purity. 

Our  citizf.-.s  are  concerm-d  that  our  criminal  courts  have 
demanded  not  basic  fairness,  not  procedural  regularity,  but  proce- 
dural perfection  and  that  anything  short  of  perfection,  no  matter 
how  close  to  perfect  It  might  be,  is  by  definition  "error"  and 
reason  enough  to  suppress  evidence  --  often,  the  most  probative 
evidence .  act  would  curt  part  of  that  problem,  while  still  provi- 
ding protection  for  the  legitimate  rights  of  our  citizens  to  be 
free  of  unreasonable'  police  conduct. 

Under  this  act,  good  faith  mistakes  made  by  Jaw  enforcement 
officers  in  the  collection  of  criminal  evidence  would  no  longer 
automatically  result  in  the  suppression  of  that  evidence. 

That  IS  to  say,  evidence  of  a  crime  could  not  be  excluded 
from  trial  due  to  a  minor  search  and  seizure  violation,  as  long- 
_as  the  officer  who  seized  the  evidence  acted  under  the  reason- 
able and  good  faith  belief  that  his  action  was  lawful. 

Currently  the  Exclusionary  Rule  visits  upon  our  law  enforce- 
ment officers,  our  courts  and  our  communities  a  nightmare  of 
confusion  and  conflicting  decisions. 

The  Exclusionary  Rule  was  born  of  a  noble  intent.  Certainly 
It  was  not  intended  to  create  chaos.  It  was  intended  to  hold 
police  behavior  in  check  by  taking  away  the  incentive  for 
officers  to  engage  in  court -defined  "illegal"  conduct  violative 
of  court -recogni zed  or  court -created  rights.  The  scope  of  the 
rule  has  now  expanded  beyond  its  legitimate  purpose. 

In  order  for  the  Rule  to  have  any  beneficial  effect,  two 
elements  must  be  present.  First,  there  must  be  certainty  as  to 
the  standard  of  acceptable  police  behavior.  In  order  to  teach  an 
officer  that  unacceptable  behavior  will  produce  no  usable 
evidence,  the  officer  must  first  know  at  what  point  behavior 
becomes  unacceptable.  Today,  he  simply  does  not  know  that  because 
the  courts  keep  retroactively  redefining  acceptable  police 
conduct  and  so  the  "lesson"  for  the  police  officer  is  wholly  lost. 


Second,  there  must  be  some  reasonable  proximity  in  time 
beth-een  the  officer's  conduct  and  the  court  ruling  on  the  pro- 
priety of  that  conduct.  Again,  that  element  is  missing  in  our 
system.  An  officer  makes  a  search  incident  to  an  arrest  today 
and  it  will  not  be  for  perhaps  five  years  on  a  trip  through  the 
appellate  courts  that  today's  perfectly  proper  conduct  will  be 
pronounced  unacceptable,  "illegal,"  by  a  court  in  its  after- 
acquired  wisdom. 

Today's  chaos  comes  because  the  Exclusionary  Rule  does  not 
deter  police  misbehavior  because  it  does  not  punish  police  mis- 
behavior. Instead,  it  punishes  police  lack  of  prescience,  police 
inability  to  anticipate  years  in  advance  how  future  courts  are 
going  to  rule  on  search  and  seizure  issues.  No  one  quarrels  with 
deterring  misconduct,  but  we  should  not  punish  the  officer  who, 
in  good  faith,  tries  to  enforce  the  law  to  the  best  of  his 
abil 1 t y . 

Today's  system  has  become  so  unsure,  has  become  so  unable  to 
offer  guidance  to  the  officer  that  we  are  not  infrequently 
confronted  with  a  magistrate  who  issues  a  search  warrant,  only 
to  have  second  thoughts  and  suppress  the  evidence  properly  seized 
under  his  own  warrant. 

Today,  if  an  honest,  well  trained  and  experienced  police 
officer  who  earnestly  wants  to  follow  the  law  goes  to  see  an 
-honest,  well  trained  and  experienced  deputy  district  attorney 
who  earnest  iy  wants  to  follow  the  law  and  together  they  prepare 
an  affidavit  and  warrant  and  take  them  to  an  honest,  well 
trained  and  experienced  magistrate  who  earnestly  wants  to  follow 
the  ]aw,  and  the  magistrate  then  carefully  Seviews  the  affidavit 

and  the  warrant,  all  these  folks  have  about  a  75%  chance  of 
doing  everything  right. 

That  means  that  even  under  the  very  worst  scenario  from  the 
crook's  standpoint,  he's  got  at  least  a  25%  chance  going  in  that 
the  evidence  gathered  against  him  is  going  to  be  suppressed. 

I  submit  to  you  that  such  a  system  makes  no  sense  and  it's 
time  to  do  something  about  it.  This  bill  would  do  it. 


In  considering  imposition  of  limits  upon  application  of  t he 
Exclusionary  Rule,  you  should,  I  respectfully  suggest,  pose  five 
quest  ions . 

f_i rst ,  does  the  Exclusionary  Rule  really  have  that  much 
impact  on  criminal  trials  that  it  is  something  we  should  concern 
ourselves  wii h? 

Emphatically,  yes.  About  90%  of  all  criminal  cases  in  the 
nation  are  conducted  in  state  courts.  The  only  major  study  of 
these  state  court  prosecutions,  completed  in  1982  by  the  National 
Institute  of  Justice,  has  concluded  that  the  Exclusionary  Rule 
has  a  major  impact  on  criminal  trials.  In  California,  over  a 
third  of  all  felony  drug  arrestees  are  ultimately  set  free 
because  of  senrch  and  seizuiu  issues.  From  1976  to  1979,  that 
amounted  to  over  4,000  felony  cases.  Of  those  persons  not  prosecu- 
ted, nearly  half  were  rearrested  within  two  years  of  release. 

Second,   would  establishing  a   "good  faith  exception"  to  the 
Exclusionary  Rule  weaken  its  deterrence  upon  police  misconduct? 
The  answer  to  this  question  is  just  as  emphatic  and  it  is  no. 
First   of  all,  to  believe  that  the  Exclusionary  Rule  effec- 
tively deters  police  misconduct  is  to  believe  in  the  tooth  fairy. 
It   is   a   simple   illusion,   for   the   rule   does   not   punish   the 
officer   for   misconduct,   it   punish(?s   society   by   allowing   a 
criminal  to  go  free. 

As  we  discussed,  the  Exclusionary  Rule  has  not  resulted  in 
any  certainty  of  standard  by  which  an  officer  can  gauge  his 
conduct . 

In  the  past  four  years  alone,  the  United  States  Supreme 
Court  nas  changed  its  opinion  by  split  decision,  no  less  than 
foi;r  times  as  to  exactly  what  parts  of  a  car  or  its  contents  an 
officer  may  search  without  a  warrant.  Clearly,  our  courts  are 
raking  a  valiant  effort  to  define  the  limits  of  the  Fourth 
A.-.vr.dr  •..••nt  .  Such  judicial  backing  and  filling,  however,  provides 
i:-:'i\.-  meaningful  guidance  to  police  officers,  for  while  the 
-^■iq'.-s  think  great  thoughts  and  write  rough  drafts  of  new  Fourth 
A.r.-,T  d.T  v-m   pronouncements,   the  officer   has  to  decide  whether  he 


car.  dc  a  pat-down   for  weapons  on  this  Hell's  Angel  he's  just 
found  in  a  dark  alley. 

One-  of  the  more  pernicious  aspects  of  the  Exclusionary  Rule 
in  Its  present  form,  is  that  it  protects  only  the  criminal  and 
does  not  hing  for  the  innocent  citizen  who  is  wrongly  stopped  or 
searched  by  police.  It  is  an  ignoble  judicial  rule  which  gives 
100%  of  us  benefits  --  in  every  case,  at  every  time,  with  no 
exceptior;s  --  t-o  criminals,  at  the  expense  of  honest  citizens. 

Let  us  suppose  for  a  moment  that  an  officer  mistakenly 
enters  an  innocent  citizen's  home.  Let  us  suppose,  further,  that 
the  officer's  conduct,  while  technically  improper,  was  both 
reasonable  and  nade  in  good  faith.  What  benefit  comes  to  the 
innocent  citizen  from  the  Exclusionary  Rule?  None. 

The  invading  officer  found  no  drugs,  no  guns,  no  dead  bodies 
inside  the  innocent  man's  house.  The  innocent  man  is  not  prosecu- 
ted for  any  offense,  for  the  good  and  sufficient  reason  that 
he  has  committed  no  crime.  There  is,  therefore,  no  evidence 
to  suppress  and  no  trial  at  which  to  suppress  it. 

So  our  wronged  citizen  turns  for  relief  to  the  civil  courts. 
If  the  officer  did  act  reasonably  and  in  good  faith,  and  if 
he  can  so  demonstrate,  the  citizen  does  not  collect  a  penny. 
There  is,  you  see,  a  good  faith  exception  in  civil  law  which 
bars  such  recovery. 

I  submit  to  you  that  the  situation  is  incongruous.  The 
innocent  victim  is  denied  recovery  because  the  officer  acted 
reasonably  in  good  faith,  while  a  similarly  aggrieved  criminal 
defendant  enjoys  full  immunity  from  his  crime  because  criminal 
lav.  lacks  a  siT.ilar  good  faith  doctrine. 

I  submit  to  you  that  this  bill  evens  the  score:  it  limits 
the  criminal's  "recovery"  to  that  available  to  the  innocent 
victim  in  civil  court  and  does  not  allow  the  criminal  to  receive 
more  protection  than  does  the  honest  citizen. 

The  third  question  you  must  ask.  m  consideration  of  this 
matter  is  whether  the  good  faith  exception  could  be  used  to 
excuse  serious  Fourth  Amendiient  violations  by  the  simple  assertion 


by  thi'  officer  that  he  was  acting  in  good  faith. 
The  answer  hero,  again,  is  no. 

Under  this  bill,  the  officer's  conduct  is  measured  by  the 
objective-  standard  of  reasonableness,  and  clear  or  serious  viola- 
tions of  a  right  of  privacy,  are  by  their  very  nature,  not  reason- 

"Good  faith"  is  a  recognized  legal  standard  that  can  be 
measured  objectively,  it  is  not  a  simple  incantation  to  be 
invoked  for  th